Murphy v. Glass Co. , 132 Ohio St. 68 ( 1936 )

Ruth Murphy, a minor seven years of age, by her father and next friend, brought an action in the Court of Common Pleas for damages for injuries received by her when struck by a truck operated by an agent of The Pittsburgh Plate Glass Co. while she was returning from school and was attempting to cross Benwood avenue near its intersection at 140th street, Cleveland.

Motion for judgment was interposed by the defendant at the close of the plaintiff's case, as well as at the conclusion of all of the evidence, both of which motions were overruled and the case was submitted to the jury, which returned a verdict for the defendant. The Court of Common Pleas sustained a motion of the plaintiff for a new trial on the ground that the verdict was against the weight of the evidence and not sustained by sufficient evidence.

The defendant filed a petition in error in the Court of Appeals, which was dismissed by that court on the ground that the order granting the motion for new trial was not a final order from which error could be prosecuted. The judges of the Court of Appeals, finding their judgment in conflict withWebster v. Pullman Co., 51 Ohio App. 131, 200 N.E. 188, certified the record to this court for review and final determination.

Where a trial court overrules a motion for a directed verdict, a verdict is returned for the party making such motion, and a motion for new trial is sustained by the trial court, the overruling of the motion for a directed verdict is a final order from which a review may be had.Michigan-Ohio-Indiana Coal Assn. v. Nigh, Admx., 131 Ohio St. 405, 3 N.E.2d 355; Hubbuch v. City of Springfield, 131 Ohio St. 413, 3 N.E.2d 359; Hocking Valley Mining Co. v.Hunter, 130 Ohio St. 333, 199 N.E. 184, and CincinnatiGoodwill Industries v. Neuerman, 130 Ohio St. 334,199 N.E. 178.

The Court of Appeals having erroneously dismissed the petition in error, its judgment is reversed and this cause is remanded to the Court of Appeals with directions to consider the assignment of error, relating to error by the trial court in refusing to direct a verdict and enter judgment for defendant in that court.

Judgment reversed and cause remanded.

WEYGANDT, C.J., STEPHENSON, JONES, MATTHIAS, DAY and ZIMMERMAN, JJ., concur.