34 A.2d 924 | Pa. Super. Ct. | 1943
Argued October 1, 1943. Nelson Jacot, the most important witness to this automobile accident, was not called by either side at the trial. He was shown to have been a passenger in the automobile which injured the minor plaintiff. The record does not disclose whether his absence was explained. As a result, the evidence of negligence was, to say the least, meager and the evidence of agency largely circumstantial.
Nevertheless, the verdicts were for plaintiffs. Defendant then filed motions for judgment n.o.v. and for new trial. The court overruled the former and granted a new trial. Defendant appeals and assigns as error the refusal to enter judgment n.o.v.
A trial court is not bound to enter judgment n.o.v. in every case in which it is later convinced it should have given binding instructions at the trial. It has discretionary power, in the interest of justice, to give *639
another chance to the party against whom, on the basis of the existing record, it might feel compelled to enter judgment. And in such cases, particularly where, as here, the losing party files both motions, appellate review is limited to determining whether there has been an abuse of discretion. The matter has been exhaustively discussed by the Supreme Court in March v.Phila. West Chester Traction Co.,
Here we do not pass on the question of the sufficiency of plaintiff's evidence to go to the jury because a new trial, with the production of the missing eye-witness, may completely alter its complexion. See Kline v. Moyer,
Order affirmed.