Appeals, Nos. 60 and 61, Jan. T., 1959, from order of Court of Common Pleas of Carbon County, Jan. T., 1957, No. 8, in case of Norman E. Exner et ux. v. Ray L. Gangewere. Order affirmed. Trespass for personal injuries. Before MCCREADY, P.J. Verdict returned for wife plaintiff in amount of $24,000 and husband plaintiff in amount of $10,000; defendant's motion for judgment n.o.v. overruled and motion for new trial granted. Plaintiffs appealed.
Joseph H. Foster, with him Martin H. Philip, for appellants.
Roger N. Nanovic, with him Albert H. Heimbach, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Mcbride, JJ.
OPINION BY MR. JUSTICE MCBRIDE
This is an action in trespass for personal injuries suffered by plaintiffs, Norman E. Exner and Catherine M. Exner, when their automobile collided with that of the defendant, Ray L. Gangewere, which was then being driven by his son, Robert L. Jacoby. The only issues submitted to the jury were (1) Was Jacoby the servant of the defendant at the time of the accident? and (2) Was Jacoby then in the course and scope of his employment?*fn1
The jury answered both questions in the affirmative. Defendant's motion for judgment n.o.v. was denied and no appeal has been taken from that order. Hence, we are precluded from considering that issue. Harr, Sec'y. of Banking v. Fairmount Foundry, Inc., 331 Pa. 59, 64, 200 Atl. 46 (1938). Defendant's motion for new trial was granted. Plaintiffs appeal.
The court below ordered the new trial on the stated ground that while the evidence supported the jury's finding on the first question submitted, i.e., the master-servant relationship, its finding on the second question
as to scope of employment was against the weight of the evidence.
The question presented for our decision therefore is whether the action of the court below manifests a "palpable abuse of discretion". Glaister v. Eazor Express, Inc., 390 Pa. 485, 136 A.2d 97 (1957); Smith v. Blumberg's Son, Inc., 388 Pa. 146, 130 A.2d 437 (1957).
To resolve this question we too must examine the record and assess the weight of the evidence; not, however, as the trial judge, to determine whether the preponderance of the evidence opposes the verdict, but rather to determine whether the court below in so finding plainly exceeded the ...