Van Horn v. Philadelphia Rapid Transit Co.

Argued January 22, 1929. In this action of trespass to recover damages for personal injuries, judgment was entered against defendant; thereafter, within the term, the court below set aside the judgment and ordered a new trial; plaintiff has appealed.

An opinion, written by the trial judge, joined in by the president judge and dissented from by the other judge of the court below, states, inter alia, that the trial judge entertained doubt as to the justice of the verdict, and, therefore, when, after judgment, "additional reasons for a new trial were permitted to be filed," he personally heard the testimony presented in support of the reasons, "in order that he might have the benefit of observation of the witnesses"; that such testimony developed facts which convinced the court that the evidence given by a material witness at the trial, without whose testimony "plaintiff would not have received a verdict __________, was false." Following this statement, the opinion concludes thus: "After considering with great care all of the evidence offered on behalf of the defendant, as well as of the plaintiff, the trial judge concluded that he could not conscientiously vote to sustain plaintiff's verdict, and that defendant was entitled to a new trial; with this view, the president judge concurred."

In Fertax v. Spiegelman, 292 Pa. 139, 140, we recently said: Where the trial court states that, in its opinion, "the interest of right and justice requires that [a case] shall be retried __________ we do not interfere on appeal."

The order appealed from is affirmed.