Jones Et Vir v. Williams , 358 Pa. 559 ( 1948 )

I dissent. In Marko v. Mendelowski, 313 Pa. 46, 47,169 A. 99, we said: "We have frequently said we will not reverse an order awarding a new trial unless a palpable abuse of discretion on the part of the trial judge is disclosed or unless an erroneous rule of law, which in the circumstances necessarily controls the outcome of the case, is certified by the trial judge as the sole reason for his action: . . ." See also Hitchay v. Phillips, 316 Pa. 290, 175 A. 389. The court en banc, in granting a new trial in this case said, "As we think the verdict should have been against both the defendants, it would be unjust to deny the defendant's motion for a new trial." Another salutary rule recognizes that the trial judge is in better position to consider the merits of testimony than the members of this Court. In Phillips' Estate, 295 Pa. 349, 356, 145 A. 437, we said, "The trial judge saw all of these witnesses, and hence is far better able to determine what weight should be given to their testimony than we can possibly be."

I therefore accept the trial judge's statement that it would be unjust not to try this case again.

In Maloy v. Rosenbaum Co., 260 Pa. 466, 472, 103 A. 882, we said: "While the ascertainment of the underlying facts, and the drawing of the inferences and final conclusions therefrom, are for the jury, even where strong conflicting oral evidence is produced by a defendant, yet, in every such instance, a grave responsibility rests upon the trial judge to see to it that no verdict contrary to the weight of the evidence or shocking to judicial conscience is allowed to stand, no matter how many new trials must be granted in order to effect the ends of justice; and this will always be so, until the fundamental law, which ordains that trial by jury shall be as heretofore, is changed to give greater power, in the realm of fact, to the judiciary." See also Hess v. Stiner, 144 Pa. Super. 249, 19 A.2d 560.

In Sandonawicz v. Life Ins. Co., 129 Pa. Super. 431,196 A. 543, an order affirming a fourth trial on matter of fact was affirmed.

Mr. Justice HORACE STERN concurs in this opinion.