Poske v. Mergl

• Decision Date: 01 April 1959
• Docket Number: No. 35598,35598
• Citation: Poske v. Mergl, 169 Ohio St. 70, 157 N.E.2d 344 (Ohio 1959)
• Parties: , 8 O.O.2d 36 POSKE, Appellant, v. MERGL, Appellee.
• Court: Ohio Supreme Court

Page 70

169 Ohio St. 70

157 N.E.2d 344, 8 O.O.2d 36

POSKE, Appellant, v.MERGL, Appellee.

No. 35598.

Supreme Court of Ohio.

April 1, 1959.

Syllabus by the Court

1.Where the evidence in the trial of a case is such that the case must be submitted to a jury to find for either the plaintiff or defendant, and where the trial court after its review of the evidence on a motion for a new trial is convinced that there is insufficient credible evidence to sustain a judgment upon the verdict of the jury, such court may, in its discretion, grant not more than one new trial for that reason.

2.Such action on the part of the court rests solely within its sound discretion, and it is not reviewable unless there has been an abuse of that discretion.

3.Where a court finds a verdict not sustained by sufficient evidence, it may likewise find an answer by the jury to an interrogatory to be against the weight of the evidence.

On August 17, 1954, appellant herein, Paul W. Poske, hereinafter designated plaintiff, instituted an action in the Court of Common Pleas of Cuyahoga County against appellee herein, George Mergl, hereinafter designated defendant.

Plaintiff's petition prays for damages for personal injuries and property damage suffered in an automobile collision which occurred at about 11 p. m. on July 5, 1954.

Plaintiff was operating an automobile east on Bratenahl Freeway adjacent to Memorial Shoreway in the city of Cleveland.At the place of the collision, the freeway was a two-lane broadly curved road divided by a white center line.

Defendant was operating an automobile in a westerly direction on this roadway.The left fronts of the two vehicles came into collision.

Plaintiff's evidence is to the effect that defendant suddenly came over onto plaintiff's half of the roadway and caused the collision, and that plaintiff's lights were on prior to the impact.

Defendant's evidence is to the effect that prior to the impact he was driving on his right side of the road, that his automobile was pulled sideways across the white line after the impact, and that the lights of plaintiff's vehicle were not on prior to the impact.

There is testimony to the effect that the lighting conditions on the highway enabled one to see a car in front of him, even though such car's lights were not on, although it was testified that such a car could not be seen coming around the curve when the lights were off.

The jury returned a verdict for the defendant and wrote upon the vidict from, 'We believe that there was negligence on the part of both parties to this accident.'

The jury answered in the negative the following interrogatory:

'InterrogatoryNo. 1.Do you find by the evidence that the headlights on the motor vehicle driven by the plaintiff were lighted at the time of its collision with the motor vehicle driven by this defendant?'

Plaintiff filed a motion for a new trial, which was granted, the trial court making the following entry:

'Plaintiff's motion for new trial is granted.The verdict was manifestly against the weight of the evidence.The defendant's negligence was the sole proximate cause of the collision and plaintiff's injuries. * * *

'Donald F. Lybarger, Judge.'

Upon appeal to the Court of Appeals, that court rendered judgment as follows:

'This cause came on to be heard on an appeal on question of law from the order of the Court of Common Pleas of Cuyahoga County granting plaintiff's motion for a new trial, and was argued by counsel; on consideration whereof, the court finds error prejudicial to appellant in that:

'The jury having found both parties guilty of negligence as stated in the general verdict, and there being substantial and credible evidence to support the jury's conclusions, including plaintiff's negligence in answer to interrogatory No. 1, the court having submitted the question of proximate cause to the jury in its general charge, the granting of a motion for new trial and the stating in the entry granting such motion that the plaintiff's injuries were he sole proximate result of the defendant's negligence, thereby directly contradicting the jury's conclusions in interrogatory No. 1, and in the verdict, constitutes an abuse of discretion.The judgment of the court granting a new trial is reversed on the ground that the granting of such motion constitutes an abuse of discretion and the case is remanded with instructions to reinstate the judgment.'

The cause is before this court on appeal as the result of an allowance of a motion to certify the record.

A. H. Dudnik, Fred Weisman and Otto Themann, Cleveland, for appellant.

James A. Chiara, Cleveland, for appellee.

STEWART, Judge.

The sole error assigned in this court is that 'the Court of Appeals erred in reversing the judgment of the trial court for the reason that the granting of a new trial by the trial court was not an 'abuse of discretion."

Plaintiff states that the question of law presented to us is, 'Was the granting of a new trial to the plaintiff by the trial court a clear abuse of discretion which showed an unconscionable and arbitrary attitude?'

To solve the question presented to us, it is necessary to define the rights and duties of a trial court with reference to granting a new trial upon the weight of the evidence.

Section 2321.17, Revised Code, reads in part as follows:

'A new trial is a re-examination, in the same court, of the issues after a final order, judgment, or decree by the court.

'A final order, judgment, or decree shall be vacated and a new trial granted by the trial court on the application of a party aggrieved, for any of the following causes affecting materially his substantial rights:

* * *

* * *

'(F) That the final order, judgment, or decree is not sustained by sufficient evidence, or is contrary to law * * *.'

Section 2321.18, Revised Code, reads as follows:

'The same trial court shall not grant more than one new trial on the weight of the evidence against the same party in the same case, nor shall the same court grant more than one judgment of reversal on the weight of the evidence against the same party in the same case.'

It is seen from the foregoing statutes that a trial court is authorized to once review the evidence in a trial after a judgment and to grant a new trial if it finds that such judgment is not sustained by sufficient evidence.

It is obvious that a motion for a new trial with reference to the weight of the evidence is addressed to the sound discretion cretion of the court, and this has been the law of Ohio from an early date.Conord v. Runnels, 23 Ohio St. 601, andSmith v. Board of Education of Bucyrus, 27 Ohio St. 44.

It follows that, where there is a motion for a new trial upon the ground that the judgment is not sustained by sufficient evidence, a duty devolves upon the trial court to review the evidence adduced during the trial and to itself pass upon the credibility of the witnesses and the evidence in general.It is true that, in the first instance, it is the function of the jury to weigh the evidence, and the court may not usurp this function, but, when the court is considering a motion for a new trial upon the sufficiency of the evidence, it must then weigh the evidence.A court may not set aside a verdict upon the weight of the evidence upon a mere difference of opinion between the court and jury.Remington v....