October 16, 1941.
November 19, 1941.
Negligence — Swimming pools — Lockers — Evidence.
1. In an action for injuries, in which it appeared that the minor plaintiff was a patron of a swimming pool operated by defendant, and that a section of lockers, provided for storage of clothes, fell upon her, it was held, upon consideration of the evidence, that judgment for defendant n.o.v. was properly refused.
Appeals — Review — New trial.
2. An order awarding a new trial in a civil case will not be reversed on appeal where the court below is of the opinion that the verdict is against the weight of the evidence or that the interests of justice require it, unless a palpable abuse of discretion is disclosed or unless an erroneous rule of law, which in the circumstances necessarily controls the outcome of the case, is certified by the trial judge as the sole reason for his action.
Appeal, No. 299, Oct. T., 1941, from order of M.C. Phila. Co., Oct. T., 1940, No. 560, in case of Florence Powell, a minor, by her guardian, Marty Powell, v. Garden Court Corporation.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, RHODES and HIRT, JJ. Order affirmed.
Trespass for personal injuries. Before WINNET, J.
The facts are stated in the opinion of the Superior Court.
Verdict for defendant. Plaintiffs' motion for new trial granted, opinion by WINNET, J. Defendant appealed.
Error assigned related to the action of the lower court in refusing defendant's point for binding instructions and in granting plaintiffs' motion for new trial.
Michael A. Foley, with him Henry I. Koplin, for appellant.
Maurice E. Cohen, with him Mareline McElwee, for appellees.
Argued October 16, 1941.
This is an appeal by defendant in an action in trespass to recover damages for personal injuries sustained by minor plaintiff. Defendant filed no affidavit of defense and offered no testimony. Its request for binding instructions was refused. After the jury returned a verdict for defendant, the court below granted plaintiffs' motion for a new trial. Defendant assigns as error the granting of plaintiffs' motion and the refusal to give binding instructions in its favor.
Minor plaintiff was a patron of a swimming pool operated by defendant. Steel lockers were furnished for storage of clothes, etc. After returning from swimming she reached for her purse on the top shelf of her locker, which was one in a section of six. As she did so the lockers fell upon her, and she was injured. The lockers were not fastened to the floor but were tied to each other by wire. There was testimony that at least four hours before the accident the lockers were "very loose," and that the wires which connected them were sagging. Other wires which were intended to secure the back of the one section to the back of another section were found broken.
We have carefully examined the testimony, and are convinced that it supports the ruling of the court below in refusing binding instructions. See Cathcart v. Sears, Roebuck Co., 120 Pa. Super. 531, 535, 183 A. 113; Vetter v. Great Atlantic Pacific Tea Co., 322 Pa. 440, 454, 185 A. 613; Sakach et ux. v. Antonoplos, 298 Pa. 130, 134, 148 A. 58.
The court below was of the opinion that "the verdict of the jury was perverse," and that justice demanded that plaintiffs' motion for a new trial be granted. The order will be affirmed.
We will not reverse an order awarding a new trial in a civil case, where the court below is of the opinion that the verdict is against the weight of the evidence or that the interests of justice require it, unless a palpable abuse of discretion is disclosed or unless an erroneous rule of law, which in the circumstances necessarily controls the outcome of the case, is certified by the trial judge as the sole reason for his action. Reese v. Pittsburgh Railways Co., 336 Pa. 299, 300, 9 A.2d 394; Hess v. Steiner et al., 144 Pa. Super. 249, 250, 19 A.2d 560. See, also, Weinfeld v. Funk, 342 Pa. 160, 20 A.2d 206; Kerr et ux. v. Hofer et al., 341 Pa. 47, 17 A.2d 886.
The order granting a new trial is affirmed.