Appeal, No. 313, Jan. T., 1954, from order of Court of Common Pleas No. 7 of Philadelphia County, March T., 1952, No. 7813, in case of Betty Katz v. Earlie Montague and Abraham Keller. Order affirmed.
J. Webster Jones, for appellant.
Stanley M. Greenberg, with him Bernard S. Ochman, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE MUSMANNO
On February 25, 1952, in Philadelphia, the plaintiff Betty Katz was a passenger in an automobile being operated by Abraham Keller on Norris Street in a westwardly direction. The defendant Earlie Montague
was driving a car in a southwardly direction on 25th Street which intersects Norris Street. In these modern times when car meets car at an intersection, a legal tug of war follows in some court of the Commonwealth. Betty Katz thus sued Earlie Montague for the injuries she sustained when the Keller car and the Montague car collided with each other at 25th and Norris Streets. Upon being made a defendant, Montague brought in Abraham Keller as an additional defendant. To complicate the story but not the law, Betty Katz married the additional defendant Keller, so that she found herself suing her own husband, together with Earlie Montague The jury returned a verdict in favor of Mrs. Keller against her husband but exonerated Montague. Keller asked for a judgment n.o.v. against his wife, and his wife asked for a new trial against her husband and against Montague, asserting doubly that the verdict was inadequate and that it was against the weight of the evidence. The lower court granted the plaintiff's motion for a new trial on the ground that the verdict was against the weight of the evidence, denied Keller's motion for judgment n.o.v. and then later awarded Keller a new trial.
Despite the marital involvement and interlacing network of post-trial motions, only one question presents itself before this Court, and it is this: Was the lower court in error in ordering a new trial? In Bellettiere v. Philadelphia, 367 Pa. 638, we said that "whenever the reason or reasons assigned involve the exercise of discretion, the order of the trial court will not be interfered with unless a palpable abuse of power appears.'" A study of the record here certainly negatives any assumption that the lower court palpably abused its power. We also said in the Bellettiere case that: "'One of the least assailable grounds for the exercise
of such power [to grant a new trial] is the trial court's conclusion that the verdict was against the weight of the evidence and that the interests of justice therefore require that a new trial be awarded; especially in such a case is an appellant court reluctant to interfere.'"
With those criteria before us, we see no reason for interfering with the decision of the Trial Court that justice requires the factual issues in this case be tried before another jury. The evidence would easily suggest that Montague was not without fault in the accident which visited serious injuries on Betty Katz. Montague testified that as he proceeded southwardly on 25th Street and across Norris Street, he looked to his left (which is the direction in which the Keller car was proceeding), but that he did not see the Keller car was because a truck moving northwardly on 25th Street concealed the Keller car from his view. He then said that as the intervening truck passed, the Keller car appeared before him at a distance of only 6 feet and that he then crashed into the right side of the Keller car. This testimony would justify and jury in convicting ...