
    Reiser v. Smith, Appellant.
    Argued October 5, 1937.
    Before Kephart, O. J., Schaefer, Maxey, Drew, Linn, Stern and Barnes, JJ.
    
      J. Campbell Brandon, with him W. D. Brandon and Hugh, 8. Millar, for appellant.
    
      William 8. Doty, with him Thomas A. Thornton, of Doty icG Thornton, Alexander J. Bielski, John B. Greer and Thomas H. Greer, for appellee.
    November 12, 1937:
   Opinion by

Mr. Justice Drew,

The appeal is by defendant from an order of the court below granting his motion for a new trial and refusing his motion for judgment n. o. v.

The award of a new trial is discretionary (Frank v. Bayuk, 322 Pa. 282) and we have repeatedly held that the exercise of that discretion will not be reversed except for palpable abuse. The court below granted the new trial “in order that justice be done the parties,” and we cannot say that the order was an abuse of that discretion.

Nor can we accept defendant’s contention that plaintiff failed to make out a prima facie case. If this were true, of course, he would not be entitled to a new trial: Fornelli v. P. R. R. Co., 309 Pa. 365; Walters v. Fed. Life Ins. Co., 320 Pa. 588; Petkov v. Metropolitan Life Ins. Co., 321 Pa. 14; See Andrzejewski v. Prudential Ins. Co. of America, 321 Pa. 543; Frank v. Bayuk, supra. Our review of the record makes it clear, however, that the questions of negligence and contributory negligence were for the jury; a directed verdict could not be had, and the motion for judgment n. o. v. was properly refused.

Order affirmed.  