Appeal, No. 67, March T., 1956, from order of Court of Common Pleas of Fayette County, June T., 1953, No. 388, in case of James Robert Davis, a minor, by Margaret Davis, his guardian, v. Virginia Ann Rider, a minor, by John J. Brady, her guardian. Order affirmed. Trespass for personal injuries. Before BRAEMER, J. Verdicts, in sum of $20,000 for minor plaintiff and in sum of $12,000 for plaintiff mother; order entered granting defendant's motion for new trial, before CARR, P.J., MATTHEWS and BRAEMER, JJ., opinion by BRAEMER, J. Plaintiffs appealed.
Samuel J. Feigus, with him J. R. Smiley, for appellants.
Henry R. Beeson, with him Wade K. Newell, and Higbee, Lewellyn & Beeson, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
In this action of trespass for injuries sustained by minor plaintiff when struck by defendant's automobile, the jury awarded a verdict for plaintiffs and the court below granted a new trial on defendant's motion therefor. Plaintiffs appeal.
The court gave as its reasons for new trial that "a grave injustice would be done to the defendant", and that "the conflicting, inconclusive, confusing and in some respects incredible testimony presented in the plaintiff's behalf, requires us, in order to effect justice, to grant a new trial." (Italics supplied).
An order awarding new trial will not be reversed unless a palpable abuse of discretion by the trial judge is disclosed, or unless an erroneous rele of law controlling the outcome is certified by him as the sole reason for his action: Foster v. Waybright, 367 Pa. 615, 80 A.2d 801. "'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 appellate court reluctant to interfere.'": Bellettiere v. Philadelphia, 367 Pa. 638, 643, 81 A.2d 857.
In the latter case Justice, now Chief Justice, STERN further declared at page 644: "In the present case the learned trial court did not, in so many words, express the opinion that the verdict of the jury was against the weight of the evidence; such a conclusion, however, is clearly inferable from its observations concerning the testimony and its statement that 'in the interests of justice a new trial should be granted.' ... While we would strongly impress upon trial courts the obvious desirability of stating in detail the exact reasons for which alone a new trial is granted instead of relying upon the mere generality that the 'interests of justice' require it, we are, in the present case, of opinion that the court acted well within its discretion in awarding a new trial ... in order that the issue involved may be finally determined with greater assurance of a just result."
Where proof depends upon oral testimony it is nevertheless the province of the jury to decide, under proper instructions from the court, as to the law applicable to the facts. But this is subject to the salutary power of the court to award a new trial if it ...