29 A.2d 475 | Pa. | 1942
This action in trespass was brought by Mary E. Fitzpatrick against Martha L. Sheppard and Dr. Robert P. *241
McCombs. Shortly after suit was begun Mary E. Fitzpatrick died and her administratrix was substituted as plaintiff. When the case was tried the jury found a verdict against Martha Sheppard and a verdict for the defendant Dr. McCombs. Plaintiff and defendant Martha L. Sheppard filed motions for a new trial. A new trial was granted as to each defendant and Dr. McCombs has appealed from the granting of a new trial as to him.
At the threshold we are presented with the question as to whether the circumstances are such that an appeal lies. More particularly did the court below in its opinion show "that it would have refused to grant the new trial but for reasons distinctly set forth, which, in its opinion, control the whole case" and did the reasons given involve the consideration of oral evidence? See Class Nachod Brew. Co. v. Giacobello,
The plaintiff was standing on the sidewalk at a street corner when automobiles driven by the defendants, approaching the intersection at right angles to each other, collided and the car of Dr. McCombs was pushed over the curb by the impact where it struck the plaintiff inflicting serious injuries on her from which she died.
While the sole reason given for granting a new trial was the inadequacy of the verdict, that of itself would not have been sufficient to warrant a review by this court: Class NachodBrew. Co. v. Giacobello, supra; Girard Tr. Co. v. George V.Cresson Co.,
We understand that to be a clear statement that except for the one reason assigned a new trial would not have been granted as to the doctor. It is also apparent that the granting of a new trial as to Dr. McCombs did not involve the consideration of any oral or other evidence. This is one of a class of cases where an appeal will lie from an order of the court below granting a new trial.
Did the court exceed its legal powers in granting the new trial as to Dr. McCombs? We think it did. The plaintiff's position is clear. If she is required to proceed against Sheppard alone she fears that another jury might conclude that the doctor was at fault and Sheppard was not. That, however, is not a legal reason for requiring Dr. McCombs to stand trial again when he has been exonerated by a jury after trial without error.
The sole reason for granting a new trial had to do with the issue between plaintiff and Sheppard. We must assume, and the appellees have not suggested anything to the contrary, that the issue between plaintiff and the doctor was tried without error. The consequences of the circumstance that the jury examined the conduct of both defendants in one trial and in doing so erred only in assessing damages as to Sheppard cannot be visited on the doctor. He has a verdict after a fair trial and cannot be deprived of it.
As forcibly expressed by Mr. Justice SIMPSON in Cleveland W.Mills Co. v. Myers-Jolesch Co.,
It is well settled that a new trial may be granted as to defendant Sheppard and refused as to Dr. McCombs: *243 Bailey v. C. Lewis Lavine, Inc.,
The order of the court below granting a new trial as to the defendant Dr. Robert P. McCombs is reversed and it is directed that judgment be entered in his favor on payment of the jury fee; and the order of the court below granting a new trial as to defendant Martha L. Sheppard is affirmed.
