decided: March 16, 1965.
Appeal from order of Court of Common Pleas of Lycoming County, May T., 1962, No. 523, in case of Harry J. Hostrander v. James E. Lucas and Kenneth L. Fry.
H. Clay McCormick, with him Furst, McCormick, Muir, Lynn & Reeder, for appellant.
No argument was made nor brief submitted for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ.
Author: Per Curiam
[ 416 Pa. Page 604]
In this trespass case, the lower court ordered a new trial upon the ground that its instructions to the jury erroneously stated the applicable law to the prejudice of plaintiff-appellee. While defendant-appellant does not dispute that the charge was erroneous he asserts it was harmless, because, under the proof, the erroneous portion was inapplicable to the case and, therefore, would not have entered into the jury's conclusion
[ 416 Pa. Page 605]
in favor of defendant. Accepting, for present purposes, defendant's view of the proof we are satisfied that the jury might have been sufficiently confused by the charge to bring the order of a new trial well within the bounds of the trial judge's discretion in such matters.
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