
    Hershey, Appellant, v. Pittsburgh & West Virginia Railway Company, Appellant.
    
      Argued October 3, 1950.
    Before Drew, C.J., Stern, Stearne, Jones, Ladner and C.hidsey, JJ.
    
      T. Robert Brennan, with him Ross W. Thompson and Brennan & Brennan, for plaintiff.
    
      T. W. Pomeroy, Jr., with him J. N. Poffinberger, Jr., and Kirkpatrick, Pomeroy, Lockhart & Johnson, for defendant.
    November 13, 1950:
   Opinion by

Mr. Justice Jones,

The plaintiff sued in assumpsit to recover from the defendant the value of approximately twenty tons of peanuts which the plaintiff had stored in bags in the defendant company’s warehouse in Pittsburgh. On March 21, 1946, while the bailment endured, there was a fire of considerable magnitude in the warehouse. Thereafter, the plaintiff made demand for delivery of tbe peanuts, but tbe defendant failed to deliver them. Upon trial of the case, tbe jury returned a verdict for tbe plaintiff in an amount representing tbe full value of tbe peanuts and some interest. Tbe defendant filed motions for a new trial and for judgment n.o.v. Tbe court below in separate orders refused tbe motion for judgment but granted a new trial. Both parties have appealed, tbe plaintiff from the order granting a new trial and tbe defendant from tbe order refusing judgment n.o.v.

We shall consider first tbe motion for judgment. That the plaintiff made out a prima facie case in chief is not open to question. He proved delivery of ‘the peanuts to the defendant, bis demand for them and tbe defendant’s failure to return them. In Farnham v. The Camdem and Amboy Railroad Company, 55 Pa. 53, 61, which was a suit for damages for tbe unreturned subject matter of a bailment for hire, this court observed that “. . . tbe plaintiff in tbe first instance . . . must have shown . . . that he delivered tbe goods to the defendants . . . [and] that their agent called for them and could not get them. There be might have rested to bear tbe reply . . . .” As was said in Schell v. Miller Forth Broad Storage Company, Inc., 142 Pa. Superior Ct. 293, 296, 16 A. 2d 680, citing Logan v. Mathews, 6 Pa. 417, 418, — “When tbe bailee . . . fails to return [tbe goods] at all tbe law requires him ‘to give an account of tbe matter’ or assume responsibility for tbe loss.” In order to cast upon tbe bailor tbe duty of proving that tbe loss of bis goods was due to negligence of tbe bailee, it is incumbent on tbe latter to show by clear and satisfactory proof that tbe goods were lost and tbe manner in which they were lost: Clark & Co. v. Spence, 10 Watts 335, 337. On tbe other band, “When tbe bailee has furnished such proofs satisfactory to tbe court and jury and if such proofs do not disclose lack of due care on bis part, then tbe bailor, if be would recover, must prove negligence on tbe part of tbe bailee and tbe bailee’s negligence becomes tbe vital issue”: Schell v. Miller North Broad Storage Company, Inc., supra, at p. 301.

It is tbe defendant’s contention that, upon its proving tbe destruction of tbe plaintiff’s goods by fire and tbe water incident to fighting tbe fire, tbe burden of persuasion shifted to tbe plaintiff to establish tbat the loss was due to negligence of the defendant. That, of course, presupposes tbat the defendant’s exculpatory evidence is credible and will, perforce, be so accepted by tbe jury. But, of course, no such assumption is permissible. The defendant’s proofs in material regard being oral, binding instructions in its favor on the. basis thereof could not be given: Nanty-Glo Boro. v. American Surety Co., 309 Pa. 236, 238, 163 A. 523; Satterwhite v. National Powder Company, 362 Pa. 133, 139, 66 A. 2d 278; MacDonald v. Pennsylvania Railroad Co., 348 Pa. 558, 562-563, 36 A. 2d 492.

Tbe testimony for tbe respective parties on tbe issue whether tbe plaintiff’s peanuts were destroyed by tbe fire and incidental water was conflicting. Opposed to tbe defendant’s proofs, to which we have already referred, tbe plaintiff offered testimony tbat his peanuts, or a considerable portion of them, were seen in the warehouse after the fire, unharmed. If tbe jury chose to believe, as their verdict implies they did, that tbe plaintiff’s peanuts were unaffected by tbe fire, then, obviously, tbe defendant did not account satisfactorily to tbe jury for its failure to turn them over to tbe plaintiff when demanded. Judgment for tbe defendant n.o.v. was therefore properly refused.

In disposing of tbe motion for a new trial, tbe learned court below said, — “The evidence has been carefully considered. Tbe jury’s conclusion tbat tbe plaintiff’s peanuts were unaffected by tbe fire — were still fit for food — was arbitrary and against tbe weight of the evidence. For this reason, and others which need •not he discussed, a new trial is essential to a just determination of the' case.” In Marko v. Mendelowski, 313 Pa. 46, 47, 169 A. 99, it was said that “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.” This language has since been quoted with approval' by this court a number of times: see Girard Trust Company v. George V. Gresson Company, 333 Pa. 418, 422, 5 A. 2d 221; Tupponce v. Pennsylvania Railroad Company, 358 Pa. 589, 590, 57 A. 2d 898; and Held v. Van Tiggelen, 364 Pa. 317, 318-319, 72 A. 2d 73. “One of the least assailable - grounds for the exercise of such power [i.e., granting a new trial] is the trial court’s conclusion that the verdict was against the weight of the evidence and that the interests of justice therefore require that a new trial be awarded; especially in such a case is an appellate court reluctant to interfere [citing cases]”: Frank v. W. S. Losier & Co., Inc., 361 Pa. 272, 276-277, 64 A. 2d 829.

The plaintiff’s contention that the trial court abused its discretion in granting a new trial is based on an erroneous assumption that, by so doing, the court in effect violated the jury’s province of resolving the issues of fact. That idea is, of course, in conflict with the host of eases to the effect that it is the duty of a trial court to pass upon the weight of the evidence and to grant or withhold á new trial accordingly. Necessarily, a jury’s verdict will eventually determine the facts. In the instant case there was quite a bit of evidence, offered by the defendant, that many, if not all, of the plaintiff’s bags of peanuts were destroyed in the fire or soaked with water during the fighting of the fire and thereby became unfit for food whei»eupon they were condemned by local health authorities. There was also evidence that peanuts other than the plaintiff’s were stored in the building at. the -time of the fire so that whether the peanuts observed- by the plaintiff’s witness after the fire were actually the plaintiff’s depended upon the credibility of that testimony. True enough, the case for the plaintiff is sufficient to justify the verdict if his evidence ,is believed, and the defendant’s discarded. It is also true that the special finding of the jury that none of the plaintiff’s; peanuts were in the building at the time the health authorities condemned the remaining peanuts is: consistent with the verdict. But, the fact remains, that the' trial judge felt that the defendant’s evidence was entitled tó more consideration than what the jury had. apparently given it.

The words of Mr. Justice Shakswood in Reel v. Elder, 62 Pa. 308, 316, are particularly apposite to both of the instant appeals, where he said that, “However clear and indisputable may be the proof when it de: pends upon oral testimony, it is nevertheless the province of the jury to decide, under instructions from .the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence.” Entry of judgment n.o.v. would have been improper and the granting of a -new trial was in the exercise of a sound discretion of the learned court below.

Orders affirmed; costs to abide the judgment.  