McDonald v. Pennsylvania Railroad

97 A. 944, 253 Pa. 66, 1916 Pa. LEXIS 782

• Court: Supreme Court of Pennsylvania
• Decided: March 20, 1916
• Docket: Appeal, No. 274
• Status: Published

Opinion

Pee Cueiam,

The question of the liability of the appellant for the injuries sustained by the appellee could not have been taken from the jury, and no complaint is made of the instructions to them in the charge of the learned trial judge. On this appeal, however, it was most earnestly contended that a new trial ought to have been awarded, in view of depositions which were filed showing that a - material witness for the plaintiff had testified falsely at the trial. These so-called depositions were mere ex parte affidavits made by the affiants with no notice whatever to the appellee, one of whom was the alleged false witness himself. The verdict was rendered on April 19, 1915, and, within the four days allowed by Rule 89 of the court below, a motion for a new trial was filed, and the following reasons assigned therefor: '“I. The verdict is against the weight of the evidence. II. The verdict is against the law. III. The verdict is excessive. IV. The learned trial judge erred in declining the point for charge presented by defendant, which was as follows: That under the law and the evidence the verdict should be for the defendant.” On May 10, 1915, the said ex parte affi-davits were filed and assigned as aditional reasons for asking for a new trial. Rule 83 of the Common Pleas provides that “if the relief sought depends entirely upon matter of record, a motion or rule may be entered as of course; but if the relief sought depends upon any matter not of record, the motion or rule shall be founded upon a petition, duly verified, stating the reasons why the relief should be granted,, and must be allowed by the court.” Under this rule a motion for a new trial could not have been entered as of course upon the mere filing of the said ex parte affidavits within four days after the verdict, for a rule or motion for relief based upon them would have to be allowed by the court.. The same is undoubtedly true of them after four days from the date of the verdict, and, in view of the disrégard of Rule 83, the court below committed no error, if it did not consider them. As the case was clearly for the jury, and the record is free from error, the judgment is affirmed.