Andrew Heil recovered $12,000 in the Cuya-hoga Common Pleas as damages for injuries alleged to have been sustained by him in a collision with a truck driven by William Roth, owned by Hazel Roth, administratrix, of the estate of Wm. Rolf, deceased. Rolf was granted a motion for a new trial and the jury returned a verdict in favor of Heil for $16,250. A judgment was rendered on such verdict. Error was prosecuted and the Court of Appeals affirmed the judgment of the Common Pleas, Heil agreeing to a remitittur of $6,250, it being considered that a second new trial was barred. One member of the Court of Appeals dissented, however.

In bringing this case before the Supreme Court Rolf asks the Court to overrule the decision in Cleveland Railway Co. v. Trendel, 101 OS 316, which interprets 11577 GC to mean that the Court of Appeals shall not have Appellate jurisdiction to review or reverse where that court has once granted a new trial upon the same ground. Rolf contends that the interpretation given 11577 GC is in direct conflict with the jurisdiction conferred upon the Court of Appeals by the State Constitution.

In the lower court Rolf had introduced evidence tending to prove contributory negligence on the part of Heil. The dissenting judge in the Court of Appeals, in his opinion, said that all this showed passion and prejudice on the part of the jury and the return of damages for the injuries sustained did likewise.

Rolf alleges that the trial judge though disapproving the verdict of the jury in the second trial, was powerless to act because of 11577 GC.