
    MORRISON v BELL
    Ohio Appeals, 2nd Dist, Franklin Co
    No 2804.
    Decided Dec 3, 1937
    Bridge & Draper, Columbus, for appellant.
    Harry S. Goldstein, for appellee.
   OPINION

By THE COURT

We have before us two motions, one filed •by counsel for plaintiff-appellee and the other by defendant-appellant, both asking lor rehearing. In our. original opinion we reversed the lower court and remanded for new trial, holding that the verdict and judgment were against the manifest weight of the evidence.

Counsel for the appellee question the correctness of this determination and points out certain evidence supporting the pJaintifi-a,ppellee’s claim of negligence on the part of the defendant.

Counsel for defendant-appellant predicates his motion on the theory that final judgment should have . been entered in favor of defendant.

We find no propositions advanced which were not considered before releasing our final opinion.

Since the decision of the case of Hamden Lodge, etc. v Ohio Fuel Gas Company, 127 Oh St 469, abolishing the scintilla rule, there is a serious question as to whether there is any distinction on the quantum of proof between the question of the weight of the evidence or final judgment. Of course, this observation is applicable only in those cases where counsel have preserved the record by properly and timely saving their question by motion for judgment. The record was so protected in the instant case. We think there is a discretion in the reviewing court, in a proper case and in the interest of justice, to remand for new trial rather than enter final judgment. It was our conclusion that the instant case, under its facts, presented a proper case for the exercise of such discretion.

The application for rehearing of both the appellant and appellee will be overruled.

BARNES, PJ, HORNBECK and GEIGER, JJ, concur.  