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April 1, 1952


Appeals, Nos. 221 and 225, Jan. T., 1951, from order of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1944, No. 1065, in case of Angelina Beal v. Reading Company. Order reversed and judgment entered for defendant.


William F. Quinlan, with him Victor Frey, for plaintiff.

John R. McConnell, with him Morgan, Lewis & Bockius, for defendant.

Before Drew, C.j., Stern, Stearne, Bell, Chidsey and Musmanno, JJ.

Author: Stearne

[ 370 Pa. Page 47]


In this trespass action for personal injuries both sides have appealed. Plaintiffs' appeal is from an order granting a new trial, following a jury's verdict for plaintiffs. The refusal of defendant's motion for judgment non obstante veredicto is the cause for the other appeal.

Where a defendant, as here, moves not only for a new trial but for judgment n.o.v., he places himself in rather an anomalous position. If his motion for a new trial is granted, it automatically disposes of the motion for judgment n.o.v. But this situation frequently has been before this Court. On appeal from an order of a trial court granting a new trial and discharging a motion for judgment non obstante veredicto, the appellate court will not reverse and enter judgment for defendant, unless it is convinced that the court below abused its discretion in awarding a new trial, especially where the appealing party is the one who prayed for and was awarded a new trial: Tupponce v. Pennsylvania Railroad Company, 358 Pa. 589, 57 A.2d 898. See also Fornelli v. Penna. R.R. Co., 309 Pa. 365, 369, 164 A. 54; Kuhler v. Harrison Construction Co., 361 Pa. 100, 62 A.2d 853; Streilein v. Vogel, 363 Pa. 379, 69 A.2d 97; Carroll v. Pittsburgh, 368 Pa. 436, 84 A.2d 505.

Before considering defendant's motion for judgment n.o.v. it is therefore necessary to pass upon the question whether defendant's motion for a new trial was properly granted. In Tupponce v. Pennsylvania Railroad Company, supra, Mr. Chief Justice DREW (then Mr. Justice DREW) accurately and concisely stated the rule, page 590: "'"We will not reverse an order awarding a new trial unless a palpable abuse of discretion on the part of the trial judge is disclosed or unless an erroneous

[ 370 Pa. Page 48]

    rule of law, which in the circumstances necessarily controls the outcome of the case, is certified by the trial judge as the sole reason for his action": Marko v. Mendelowski, 313 Pa. 46, 169 A. 99': Girard Tr. Co. v. Geo. V. Cresson Co., 333 Pa. 418, 422, 5 A.2d 221."

The trial judge has not stated that the sole reason for the grant of a new trial was his erroneous ruling of law in the trial, and no such claim is made. We therefore are concerned with but a single question, viz.: was it a palpable abuse of discretion for the court below to grant a new trial upon the sole reason that " the interests of justice require a retrial of the case "?

In Bellettiere v. Philadelphia, 367 Pa. 638, 81 A.2d 857, Mr. Justice STERN made a comprehensive analysis of these principles. In a footnote he has collected a host of cases supporting them.

Where the reason assigned for the grant of a new trial involves the exercise of discretion, ordinarily the order of the trial court will not be interfered with, in the absence of palpable abuse of power: Class & Nachod Brewing Co. v. Giacobello, 277 Pa. 530, 121 A. 333, cited with approval in Bellettiere v. Philadelphia, supra. But as stated by Chief Justice MAXEY in Jones v. Williams et al., 358 Pa. 559, 58 A.2d 57, p. 564: "While this Court usually supports the action of the trial court in granting or refusing a new trial we do not entirely abdicate our reviewing functions in such cases. This Court, too, has the duty to determine from the record whether or not the jury's verdict was so contrary to the evidence as to shock one's sense of justice and to make the award of a new trial imperative so that right may be given another opportunity to prevail." This quotation was repeated with approval in Decker v. Kulesza, 369 Pa. 259, 263, 85 A.2d 413.

One who seeks to reverse the action of a trial court in granting a new trial assumes a heavy burden. Appellate

[ 370 Pa. Page 49]

    courts are reluctant to interfere with such exercise of judicial discretion. It is only where such discretion has been exercised capriciously, arbitrarily, improvidently or has been palpably abused that we will reverse. A trial court, however, must give reasons for its action, otherwise an appellate court would be unable to review such action. Mere conclusions such as "interests of justice" are insufficient. All judicial process necessarily is in the interest of justice. Such conclusion, in the absence of amplication, could well serve as a cloak or shield for abused judicial discretion.

Since the learned court below in the present case failed to give its reasons for granting defendant's motion for new trial, stating only its conclusion that "the interests of justice require a retrial", we are obliged to examine the entire record to determine whether any valid reason exists for disturbing the jury's verdict: Bellettiere v. Philadelphia, 367 Pa. 638, 81 A.2d 857; Carroll v. Pittsburgh, 368 Pa. 436, 84 A.2d 505; Decker v. Kulesza, 369 Pa. 259, 85 A.2d 413. We make this study unaided by any comment from the trial court on credibility of witnesses, quality of testimony, or any of the many other matters which might have guided the court in exercising its judicial discretion. So far as the record reveals, no facts are in dispute, and no issue of credibility or weight of testimony exists which requires the submission of this case to another jury. We will therefore reverse the order granting a new trial.

Defendant's appeal from the order refusing its motion for judgment n.o.v. raises the question whether the established facts reveal, as matter of law, that defendant was not responsible for plaintiffs' injuries.

Angelina Beal, and her husband, John Beal, the plaintiffs, sued the Reading Company, the defendant,

[ 370 Pa. Page 50]

    to recover damages for injuries suffered by the wife-plaintiff on December 24, 1942, caused by a fall into a hole located within the lines of a state highway that passed over a cut and bridge over and across the right of way and tracks of the defendant railroad company.

Over ninety years ago, in 1857, the defendant, on its own land and right of way, made a cut eighty-seven feet in width and forty feet in depth through which it laid its railroad tracks, and over which it has since actively operated its railroad. Fifty-six years after such construction, in 1913, the Commonwealth of Pennsylvania condemned for a state highway a fifty foot wide strip of land running approximately at right angles to the defendant railroad's right of way on which it built a state highway; the state constructed a bridge with a span of eighty-seven feet over the cut; the cartway over the bridge was seventeen and eight-tenths feet wide; and a footwalk approximately six and one-half feet wide on the west side of the bridge was separated from the cartway by a low sturdy metal wall. Along the edge of the highway approaching the bridge, at the top of the railroad embankment, the highway department constructed a guard fence composed of two wire cables supported by wooden posts. Since only thirty of the fifty feet condemned by the state are actually paved or used for highway purposes, land owned by the state extends about fifteen feet beyond the guard fence onto the cutout constructed by the railroad company. The guard fence is thus well within the boundary of land owned and maintained by the highway department. The hole into which plaintiff stepped was located about fifteen or twenty feet from the northeast corner of the bridge, on the highway side of the guard fence. It was about two or three feet deep and was the upper extremity of a washout which extended all the way down the bank of the railroad cut. Plaintiff was injured

[ 370 Pa. Page 51]

    when she moved back from the traveled portion of the highway to avoid a passing automobile, stepped into the hole, slipped under the guard fence, and fell to the foot of the embankment. It is undisputed that the cause of the hole in the highway was ...

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