Practice — Judgment n.o.v. — New trial — Appellate review.
1. 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 another chance to the party against whom, on the basis of the existing record, it might feel compelled to enter judgment.
2. In such cases, particularly where the losing party files both motions, appellate review is limited to determining whether there has been an abuse of discretion.
Appeals — Review — New trial — Sufficiency of plaintiff's evidence to go to jury.
3. Where the appellate court determines that an order of the court below granting a new trial did not constitute an abuse of discretion, and it appears that the character of the testimony at the new trial may be substantially different, the appellate court will not pass on the question of the sufficiency of plaintiff's evidence to go to the jury.
Argued October 1, 1943.
OPINION BY KENWORTHEY, J., December 9, 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 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., 285 Pa. 413, 132 A. 355, the first case arising under the Act of April 9, 1925, P.L. 221, 12 Pa.C.S.A. § 682. See also Trimble v. Mennel Milling Co., 313 Pa. 188, 169 A. 84; Phillips v. American Stores Co., 342 Pa. 33, 20 A.2d 190. And compare Petkov v. Metropolitan Life Ins. Co., 321 Pa. 14, 183 A. 46, where the losing party was given a new trial, there was nothing to justify the court's action, and the lower court, in its opinion, said "in all probability, the result will be the same."
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, 333 Pa. 486, 3 A.2d 920; Fulginiti v. Diamond Coal Coke Co., 259 Pa. 344, 103 A. 51.
Order affirmed.