Appeals — New trial — Opinion of court below — Discretion.
Where the court in banc below expresses an opinion that a trial judge has erred in directing a verdict for defendant, and orders a new trial, such order will not be disturbed unless the record shows an unmistakable abuse of discretion.
Argued January 5, 1932.
PER CURIAM, February 3, 1932:
Plaintiffs sued in trespass to recover for injuries suffered by the minor plaintiff in an automobile accident, and defendant appeals from the order of the court below granting a new trial.
At the conclusion of the testimony in the lower court, defendant's point for binding instructions was affirmed, and a verdict directed in his favor. The opinion of the court in banc granting a new trial states: "After a careful consideration and review of the testimony in this case, we are of the opinion that the trial judge erred in affirming this point [for binding instructions] and should have submitted the case to the jury" to determine the question of defendant's negligence and the contributory negligence of the minor plaintiff. A supplementary opinion quoting evidence of various witnesses gives in more detail the court's reasons for concluding that a retrial should be had. Following our invariable rule, under such circumstances, we will not disturb an order granting a new trial, "except in cases where the record shows an unmistakable abuse of discretion": Lombardo v. Barilla, 302 Pa. 460, and cases there cited. In the appeal now before us the record fails to show such abuse.
The judgment is affirmed.