State Ex Rel. Scruggs v. Baltimore Transit Co.

Parke, J., delivered the opinion of the Court. The action in the pending case was brought by the State of Maryland to the use of the surviving widow of William L. Scruggs against the Baltimore Transit Company, a corporate public carrier, and Nelson Mahone, defendants, to recover under the statute (Lord Campbell’s Act), for the alleged negligent death of the husband in a collision between the automobile truck of the carrier and an automobile driven by the defendant Nelson Ma-hone, at where the western terminus of Center Street enters the eastern side of Howard Street. The case was tried before a jury and resulted in a verdict against both the defendants. Before the verdict was extended, the carrier filed a motion for a new trial.

The usual grounds of such a motion were given: That the verdict (1) is against the evidence; and (2) is against the weight of the evidence; and (3) that the damages awarded are excessive; (4) and that evidence is newly discovered; (5) that the court was guilty of error in its instructions to the jury, and, (6) that other reasons would be assigned at the hearing of the motion. A seventh ground assigned was misconduct of the jury. The defendant Mahone filed a separate motion, which differed in naming but three grounds. Two of these were like the third and sixth of the carrier’s, while the third was for errors in rulings of the court on the testimony.

After these motions, the proceedings relative to the motions became somewhat complicated, and resulted eventually in the parties appearing before the trial judge, where testimony was heard with reference to the alleged misconduct of certain of the jurors. In the course of these proceedings, the plaintiff raised numerous questions of procedure, of the capacity of witnesses to testify and of the admissibility, relevancy and materiality of the evidence, and of its legal sufficiency to support a new ⁴⁵³ trial. At the close of the testimony and of the hearing, the court gave the questions of law and of fact painstaking and careful consideration, and filed an opinion in which the whole matter was weighed, and the reasons of the trial court for granting the motion were stated. The order of court setting aside the verdict and granting a new trial was filed on June 20th, 1939.

On June 27th, the plaintiff filed a motion to strike out the order directing a new trial, which was, by its own averment, based principally on the alleged improper admission of the testimony produced by the carrier at the hearing in connection with the preceding motion for a new trial. Consistently with its previous ruling, the court denied on June 29th, 1939, this motion. Whereupon the plaintiff presented the court with a petition for a writ of error to bring before this tribunal for review the two orders of June 20th and 29th. The court allowed the writ of error as prayed on July 18th.

The following day appeal was entered by the plaintiff from the same two orders. The writ of error and the two appeals come up on one record and are docketed as though a single appeal. The defendants have made a motion in this court to dismiss the two appeals and the writ of error. The court is clearly of the opinion that the action of the trial court in overruling the plaintiff’s motion to strike out the order granting a new trial, and in its awarding a new trial, go to the discretion of the trial court in granting or refusing a new trial, and cannot be made the subject of review on appeal on the facts and