Appeals, Nos. 16 and 44, March T., 1964, from order of Court of Common Pleas of Allegheny County, July T., 1958, No. 6, in case of Gary Lindner, a minor, by Robert G. Lindner and Arleen Lindner, his guardians, Robert G. Lindner and Arleen Lindner, parents, in their own right, v. Edmund P. Friedel. Order reversed.
Charles F. Dean, for appellant.
Samuel L. Goldstein, with him Suto, Goldstein, Balzarini & Walsh, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Gary Lindner, 6 1/2 years of age, was crossing, between intersections, a street in Pittsburgh when he was struck by an automobile belonging to the defendant. The defendant had an unobstructed view of the street ahead of him and was 240 feet away from the child when the latter started across the street. It was a clear day. No possible reason could be advanced for failure on the part of the defendant to see the boy ahead of him. Nor did the defendant take the stand to explain why his vision did not catch the child in his path. The accident occurred in the vicinity of a playground where the defendant could expect children to appear.
The child, through his parents, and his parents, in their own right, sued the defendant and recovered a money verdict. The defendant filed a motion for judgment n.o.v. and a new trial. The Court said: "In this case, there is no question but what it was the rear right wheel of the defendant's car which come to rest upon Gary Lindner and inflicted damages. In addition, defendant's failure to testify may indicate his actual culpability."
The court thus properly refused judgment n.o.v., but inexplicably ordered a new trial. It did not say that the verdict was against the weight of the evidence, that it constituted a miscarriage of justice or that it shocked the conscience of the court. It merely stated that the evidence did not prove that the defendant was negligent. It argued that the car which the minor plaintiff saw before he committed himself to crossing the street could have been a car other than the one which ran him down. This is an argument in vacuo. It does not matter whether the car which the child saw at the intersection was the defendant's car or not if the jury found that the defendant, in sparkling daylight, collided with a boy who was within his range of vision and whom he could have avoided striking if he had had his car under proper control. In Schneider v. Sheldon, 380 Pa. 360, this Court said: "'Where an automobile driver sees a child in a place of danger, or has reason to apprehend that it might run into a place of danger, and has sufficient time to stop his car if under proper control, it is his duty to exercise such care as would be reasonably necessary to avoid a collision.'"
A trial court may not refuse judgment n.o.v. on the ground that there is evidence to support the charge of defendant's negligence, and then order a new trial, stating that there was no such evidence or that it was insufficient to support a verdict.
A court, once refusing judgment n.o.v., may not, in the spirit of a consolatory prize, offer a new trial to a discomfited litigant. A new trial is a serious business. It involves great expenditure of time, money, and nervous tension. In addition, it throws into jeopardy a verdict won at the assizes of law, fact and justice. It has not been asserted that there was any trial ...