13 Kan. 212 | Kan. | 1874
The opinion of the court was delivered by
The only ground assigned for error in this case is that the court below erred in granting a new trial. The motion for a new trial was founded upon the following grounds, to-wit:
“ 1st, Error in the assessment of the amount of recovery; in that it is too large.
*216 “ 2d, That the verdict is not sustained by sufficient evidence, and is contrary to law.
“ 3d, Error of law occurring at the trial and excepted to at the time by said defendant.”
Upon which of these grounds the new trial was granted, is not shown by the record. Hence, before we could reverse the order of the court below granting the new trial it would have to appear affirmatively to us that the new trial could not have been properly granted upon either of said grounds. This does not so appear. The question is discussed in the brief of counsel for plaintiff in error as though the new trial was granted solely upon the ground that the verdict was not sustained by sufficient evidence. Now the record does not show that the new trial was granted upon this ground alone; but for the purposes of this case we will suppose that it was, and still we do not think that we can reverse the ruling of the court below. The evidence was conflicting and contradictory, and while we think the preponderance of the evidence sustains the verdict, still we cannot reverse the ruling of the court below for that reason. [Anthony v. Eddy, 5 Kas., 127; Field v. Kinnear, 5 Kas., 233, 238; Owen v. Owen, 9 Kas., 91, 96.) For the preponderance is not great. Before we would reverse in such a case the preponderance of the evidence would have to be so overwhelmingly great that it would show an abuse of judicial discretion on the part of the court below in setting aside the verdict and granting a new trial. Where a new trial has been granted both parties have another opportunity of having a fair and impartial trial upon the merits of the action. But where a new trial has been refused, the matter is ended unless a reversal can be had. Hence new trials should be favored instead of being disfavored, wherever any question can arise as to the correctness of the verdict. As a rule, no verdict should be allowed to stand unless both the jury and the court trying the cause can say that they believe that the verdict is correct. While the question is before the jury they are the sole and exclusive judges of all questions of fact; but when the matter comes before the court upon a motion
The order of the court below granting the new trial must be affirmed.