EVANS ET AL. v. PORTER, 306 Pa. 146 (1932)

159 A. 21

Evans et al. v. Porter, Appellant.

Supreme Court of Pennsylvania.January 5, 1932.
February 3, 1932.

Appeals — New trial — Opinion of court below — Discretion.

Where the court in banc below expresses an opinion that a trial judge has erred in directing a verdict for defendant, and orders a new trial, such order will not be disturbed unless the record shows an unmistakable abuse of discretion.

Argued January 5, 1932.

Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY and DREW, JJ.

Page 147

Appeal, No. 148, March T., 1931, by defendant, from order of C. P. Allegheny Co., April T., 1929, No. 3403, directing a new trial, in case of Catherine Evans, by her father and next friend, David R. Evans, and David R. Evans and Mabel Evans, in their own right, v. Lloyd Porter. Affirmed.

Trespass for injuries. Before ROWAND, P. J.

Verdict for defendant by order of court.

Rule for new trial. Before ROWAND, P. J., and GRAY and PATTERSON, JJ.

The opinion of the Supreme Court states the facts.

Rule absolute. Defendant appealed.

Error assigned was order, quoting bill.

George Y. Meyer, of Meyer Nunnink, with him Francis A. Wolf, for appellant.

Henry X. O’Brien and Thomas M. Marshall, Jr., for appellees, were not heard.

PER CURIAM, February 3, 1932:

Plaintiffs sued in trespass to recover for injuries suffered by the minor plaintiff in an automobile accident, and defendant appeals from the order of the court below granting a new trial.

At the conclusion of the testimony in the lower court, defendant’s point for binding instructions was affirmed, and a verdict directed in his favor. The opinion of the court in banc granting a new trial states: “After a careful consideration and review of the testimony in this case, we are of the opinion that the trial judge erred in affirming this point [for binding instructions] and should have submitted the case to the jury” to determine the question of defendant’s negligence and the contributory negligence of the minor plaintiff. A supplementary opinion quoting evidence of various witnesses

Page 148

gives in more detail the court’s reasons for concluding that a retrial should be had. Following our invariable rule, under such circumstances, we will not disturb an order granting a new trial, “except in cases where the record shows an unmistakable abuse of discretion”: Lombardo v. Barilla, 302 Pa. 460, and cases there cited. In the appeal now before us the record fails to show such abuse.

The judgment is affirmed.