July 31, 1964
BALTIMORE & OHIO RAILROAD CO., APPELLANT.
Appeals, Nos. 1 and 17, March T., 1964, from orders of Court of Common Pleas of Somerset County, No. 979 C.D. 1962, in case of Ray E. Hay and Ruby P. Hay v. Baltimore and Ohio Railroad Company. Orders affirmed.
Leland W. Walker, with him Walker and Kimmel, for plaintiff.
Nathaniel A. Barbera, with him Shaver and Barbera, for defendant.
Before Bell, C.j., Jones, Cohen, Eagen, O'brien and Roberts, JJ.
[ 415 Pa. Page 191]
OPINION PER CURIAM
Ray E. Hay and Ruby P. Hay, his wife (Hay) commenced an action of trespass against Baltimore and Ohio Railroad Company (Railroad), alleging that Railroad's negligent spraying of its right-of-way caused the death of some of Hay's cattle.
A jury trial resulted in a verdict for Hay in the
[ 415 Pa. Page 192]
amount of $6,500.*fn* Railroad moved for judgment n.o.v. and for a new trial. The motion for judgment n.o.v. was refused and the new trial motion was granted. Hay has appealed from the order granting a new trial and Railroad has appealed from the refusal of its motion for judgment n.o.v.
In considering a motion for judgment n.o.v., the evidence, together with all reasonable inferences therefrom, are considered in the light most favorable to the verdict winner. However, in considering the action of the lower court in granting or refusing a new trial, an appellate court will affirm, unless there has been a clear abuse of discretion, or an error of law which controlled the outcome of the case or the decision of the lower court. Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963), and cases cited therein.
So viewing the record, we hold that, from the evidence, the jury could have found that Railroad was negligent in spraying its right-of-way, and that this negligence was the proximate cause of Hay's loss. Judgment n.o.v. was, therefore, properly refused.
Nor do we find an abuse of discretion or error of law such as would justify the reversal of the new trial order. From the evidence, Hay, if entitled to any verdict, was clearly not entitled to one in the amount found by the jury. The evidence on damages comes nowhere hear sustaining the verdict rendered.