64 A.2d 829 | Pa. | 1949
Plaintiff was the innocent victim of an accident caused by the collision of two automobiles, one of which was being driven by defendant Foust north on Main Street and the other by defendant Garnes west on Washington Street in the Borough of Chambersburg. The Foust car struck the left rear of the Garnes car, causing it to swing around and into the northwest corner of the intersection where plaintiff happened to be standing on or near the sidewalk preparatory to crossing Washington Street. He was severely injured and brought suit for damages against Foust, Garnes and W. S. Losier Co., Inc., by which corporation Garnes was employed. The jury rendered a verdict in the sum of $5631.50 against all three defendants. Foust presented a motion for judgment n. o. v. but did not press it; Garnes and the Losier Company filed a motion for judgment n. o. v. and also a motion for a new trial. The court refused all the motions for judgment n. o. v., *275 granted a new trial to Garnes and the Losier Company, and directed that judgment be entered on the verdict against Foust.
Foust now appeals on the sole ground that a new trial should not have been granted to his co-defendants. That he has the right to take such an appeal is undoubted, — in order, if he succeeds therein, to make the other defendants share his liability to plaintiff: Schwartz v. Jaffe,
The court below was of opinion that it should have granted Garnes and the Losier Company a nonsuit at the conclusion of plaintiff's case because up to that time no negligence in the operation of their car had been shown and it was only testimony subsequently presented by Foust and the witnesses on his behalf that justified the submission to the jury of the question of the liability of his co-defendants. The court did not commit error, however, in refusing such a nonsuit since the proper practice, before entering a nonsuit or directing a verdict in favor of one of two or more defendants, is to allow the other defendants to present their testimony on the question of the liability of each and all of them: Shapiro v. Philadelphia,
The court did not assign its refusal to grant a nonsuit as to Garnes and the Losier Company as its only reason for awarding those defendants a new trial.1 On the contrary, it gave another and better reason; it said that the verdict against them was contrary to the weight of the evidence and justice required that they be granted a new trial. The granting of a new trial is an inherent power and immemorial right of the trial court and an appellate court will not find fault with the exercise of such authority in the absence of a clear abuse of discretion:Reist v. Wogan,
It is suggested that in granting the new trial for the benefit of those defendants the court should have awarded one also as to Foust for the reason that, although his liability in whole or in part for the happening of the accident was clearly established, he would be enabled thereby to present testimony showing liability also on the part of Garnes and the Losier Company. No doubt the court would have had the power to do this: cf. Biehl, Administrator, v. Rafferty,
It may be added that in the new trial granted to Garnes and the Losier Company the only issue which should be submitted to the jury is the question of the liability of those defendants, in conjunction with that of Foust, for the happening of the accident. Since the amount of damages to which plaintiff is entitled has already been determined and no complaint in regard thereto has been made by any of the parties it would obviously be improper for another jury to assess a different amount as to Garnes and the Losier Company, if a verdict be returned against them, than that rendered against Foust in the trial which has given rise to the present appeal.
Judgment affirmed.
