Athas v. Fort Pitt Brewing Co. , 305 Pa. 350 ( 1931 )

Plaintiff sued in trespass to recover damages for personal injuries, the court refused binding instructions for defendant, the verdict of the jury was for plaintiff, defendant's motion for judgment non obstante veredicto was overruled, and its motion for a new trial granted. Plaintiff appeals from the award of a new trial, and defendant from the overruling of its motion for judgment non obstante veredicto. The two appeals were argued together and will be so treated here.

We will not rehearse the facts giving rise to the action. As said in March v. Phila. West Chester Traction Co., 285 Pa. 413,416-17: "If [a new trial] is granted . . . . . . the pending motion for judgment non obstante veredicto necessarily falls, for a new trial and a judgment cannot be in effect at the same time in the same case. It follows that if the court below did not abuse its discretion in granting a new trial, it could not have erred in making the necessarily resultant order refusing judgment non obstante veredicto; and hence, in that event, we cannot reverse because it did so order." See also Regan v. Davis, 290 Pa. 167, 169; Lombardo v. Barilla, 302 Pa. 460,461. Here, the opinion of the court below states the question of negligence was a close one, and indicates that, while the court believed the evidence was sufficient to require the case to go to the jury, yet it felt, under all the circumstances, the demands of justice required a new trial. We find no abuse of discretion in this determination.

The order of the court below, refusing judgment non obstante veredicto and granting a new trial in each appeal, is affirmed.