188 Pa. Super. 91 | Pa. Super. Ct. | 1958
Opinion by
On June 9, 1954, about 9:00 p.m. at the intersection of 41st and Spruce Streets in the City of Philadelphia, a Mercury sedan automobile owned and operated by Juan B. Anderson dropped into a trench which had been excavated by workmen of the Philadelphia Transportation Company for the purpose of replacing rails in the trolley tracks. Anderson instituted a trespass action against the Company for personal injuries and property damage. At the conclusion of the trial the jury returned a verdict for the plaintiff in the amount of $850.00. The defendant filed motions for judgment n.o.v. and for a new trial. The court en banc refused to enter judgment n.o.v. but granted a new trial on the ground that the verdict was against the weight of the evidence. Anderson has appealed.
The excavation in question, approximately two feet deep, was parallel to the trolley tracks in Spruce Street, running from 40th to 42nd Street in an east-
The question involved on this appeal is whether the lower court abused its discretion in granting the Company’s motion for a new trial. In Bellettiere v. Philadelphia, 367 Pa. 638, 81 A. 2d 857, Mr. Justice (later Chief Justice) Stern outlined the relevant principles governing appeals of this nature in the following language: “In Class & Nachod Brewing Co. v. Giacobello, 277 Pa. 530, 121 A. 333, definite principles were formulated governing the scope of appellate review of an order granting a new trial; one of the rules there laid down (p. 538, A. p. 336) was that ‘whenever the reason or reasons assigned involve the exercise of discretion, the order of the trial court will not be interfered with unless a palpable abuse of power appears’. This statement, at least in substance, has been reiterated and applied in a great number of subsequent cases in this court. We have also said that ‘The presumption is that the trial court was justified in granting a new trial even when the reason given therefor is an insufficient reason unless the court expressly states that it is the only reason’ . . . Also that ‘One of the least assailable grounds for the exercise of such power [to
Counsel for appellant concedes that an order granting a new trial “will not be ordinarily interfered with”, but cites a number of cases
Order affirmed.
Aquadro v. Crandall-McKenzie & Henderson, Inc., 182 Pa. Superior Ct. 435, 128 A. 2d 147; City Products Corp. v. Bennett Brothers, 390 Pa. 398, 135 A. 2d 924; Dean v. Trembley, 185 Pa. Superior Ct. 50, 137 A. 2d 880; Glaister v. Eazor Express, 390 Pa. 485, 138 A. 2d 97; Jones v. Williams, 358 Pa. 559, 58 A. 2d 57; Martin v. Arnold, 366 Pa. 128, 77 A. 2d 99; Millenson v. City Stores Co., 382 Pa. 39, 114 A. 2d 80; Schwoerer v. City of Philadelphia, 167 Pa. Superior Ct. 356, 74 A. 2d 755; Tucker v. Tucker, 370 Pa. 8, 87 A. 2d 650; Walsh v. City of Pittsburgh, 379 Pa. 229, 108 A. 2d 769; Williams v. Scott-Smith Cadillac Co., 183 Pa. Superior Ct. 27, 127 A. 2d 782.