On July 23, 1953 a tragic and unfortunate event occurred which has resulted in this litigation. Albert G. Kuhns, 12 years old, was wounded by a bullet from a pistol discharged by his cousin, George A. Brugger, also 12 years old, while in the cottage of their common grandfather, George W. Bach, located at Manchester Beach, Erie County, and, as a result thereof, Kuhns sustained serious physical injuries.
Through a guardian, Kuhns instituted a trespass action, joined in by his parents, against George Brugger; later, by permission of court, the executor of the George W. Bach Estate was joined as an additional party defendant.[1] A motion for severance of the actions having been refused, the suit against both defendants *335 proceeded to trial. The jury returned a verdict against both defendants in the amount of $182,096; the Court below later reduced this amount to $116,604.60 and this reduction was accepted by plaintiffs. From a judgment entered on the verdict these appeals were perfected.
Both defendants have appealed, requesting judgments n.o.v., or, in the alternative, new trials. In considering these appeals the scope of appellate scrutiny of the evidence varies. Upon an appeal from the refusal to grant a motion for judgment n.o.v. the testimony must be read in the light most favorable to the verdict winner, all conflicts therein must be resolved in his favor, and he must be given the benefit of all facts and inferences from facts reasonably deducible from the evidence: Wolansky v. Lawson, 389 Pa. 477, 481, 133 A.2d 843; Wilbert v. Pittsburgh Consolidated Coal Co., 385 Pa. 149, 154, 122 A.2d 406; Lessy v. Great Atlantic & Pacific Tea Company, 121 Pa. Superior Ct. 440, 444, 183 A. 657. However, this rule does not apply upon appeal from the refusal of a new trial.[2] In determining the propriety of the refusal of a new trial the present Chief Justice JONES stated in Wilbert v. Pittsburgh Consolidated Coal Co., supra (pp. 156, 157): "Practically all of the evidence was introduced by way of oral testimony the credibility whereof was necessarily for the jury whose verdict will *336 not be set aside as being against the evidence unless it appears to be arbitrary and capricious. A determination in such regard is, in the first instance, within the province of the trial court whose decision will not be disturbed unless there is clear error of law or palpable abuse of discretion." In determining the validity of a refusal to enter judgment n.o.v. we examine the evidence to determine whether or not sufficient proof was adduced at the trial to justify the submission to the jury of each factual question: Ashcraft v. C.G. Hussey and Co., 359 Pa. 129, 134, 58 A.2d 170. With these principles in mind the following factual narrative emerges.
Bach, an elderly man, owned and occupied at least, part of each year a one story cottage at Manchester Beach on the shore of Lake Erie. This cottage was located in a somewhat isolated area in the immediate vicinity of which were several commercial fisheries. A hunting devotee, Bach owned various guns and other firearms including the Colt Woodsman .22 calibre automatic pistol which constitutes the focal point of this incident. When this pistol was not in use Bach kept it in a loaded condition in an unlocked dresser drawer in his unlocked bedroom.
At approximately noon on July 23, 1953, Bach's two young grandsons, Kuhns and Brugger, went fishing; upon their return at approximately 3:30 P.M. and during Bach's absence, the boys entered their grandfather's bedroom. Katrina Brugger Brugger's 2 year old sister was then playing in the bedroom. In a spirit of play Brugger picked up a so-called "under and over" gun a combination shotgun and rifle and pointed it at Kuhns. As he did this, Miss Fries, a great aunt of the boys, entered the bedroom and ordered Brugger to put away the gun which he did. A few minutes later Brugger went to his grandfather's *337 dresser and found in the top left drawer thereof the Colt automatic pistol,[3] previously mentioned, which was then loaded with a clip of cartridges resting in its handle. In order to prepare this pistol for firing one draws back an upper slide forcing a cartridge into the firing chamber and the cartridge is then exploded by pulling the trigger. There was some testimony that this pistol at the time was mechanically defective and that, on occasion, if one held his finger on the trigger as he pulled back the slide, the pistol would discharge, without the added requirement of squeezing the trigger a one-step, rather than a two-step procedure.
According to Brugger[4] the shooting occurred in the following manner: "And I took it [the pistol] out, took it out of the holster, took it in my hand. I believe I had my finger on the trigger. And I pulled the slide back, and then the shot occurred." The bullet, thus ejected, penetrated Kuhns' body and perforated the spinal cord, paralyzing the entire lower portion of his body and destroying all voluntary