35 Nev. 423 | Nev. | 1913
This is an appeal from an order granting a new trial, and is the second appeal in the action. (33 Nev. 491, 503.)
Respondent upon this appeal was appellant upon the former appeal, and the question there determined was whether the order denying the motion for a new trial had been improvidently entered because "the trial judge in the present case, misconceiving his judicial duty, fell into grave error in failing and-refusing to pass upon this ground (insufficiency of the evidence to justify the verdict) assigned by the defendant for a new trial.” For this reason the order denying the motion for a new trial was "set aside, with instructions to the court below to consider and pass upon the ground for a'new trial interposed by the defendant, 'of the insufficiency of the evidence to justify the verdict,’ for which purpose the case is herewith remanded.”
In passing upon the motion originally, the trial judge said: " I was not surprised that the defendant was dissatisfied with the verdict. A verdict of this kind could hardly result otherwise than as a surprise, and the defendant naturally feels that justice has been outraged.” (33 Nev. 493.)
In passing upon the motion for a new trial the second time, in pursuance of the order of this court, the trial judge granted a new trial upon the ground of "insufficiency of evidence to justify the verdict,” and in his
Hayne on New Trial and Appeal says: "Where there is a substantial conflict in the evidence, the appellate court will not disturb the. decision of the court below. This rule has been announced more frequently than any other rule of practice. It applies equally where the court below granted as where it denied the motion for a new trial. * * * The rule as to conflict does not apply to the court below. The judge of such court should set aside the verdict whenever it is against the weight of the evidence, notwithstanding the fact that there is a substantial conflict in the testimony. ” (Hayne, Rev. Ed. 1912, vol. 2, sec. 288, pp. 1614,1645.)
In Golden v. Murphy, 27 Nev. 392, this court, considering the rule governing.an order of this kind, said: "On behalf of appellants it is urged that the order granting a new trial is error, because an invasion of .the province of the jury, even if the evidence is conflicting. * * * It was held in Worthing v. Cutts, 8 Nev. 121, that, when a new trial is granted in .the lower court upon the ground that the verdict is not warranted by the evidence, the rule invariably governing the appellate tribunal is not .to disturb the action of the judge below if there is a material conflict in the evidence. In Treadway v. Wilder, 9 Nev. 70, this court stated: 'It must be borne in mind that the nisi prius courts,.in reviewing the verdicts of juries, are not subject, to the rules that govern appellate .courts. They may weigh the evidence, and, if they .think .injustice has. been done, grant a new trial, where appellate
In Albion M. Co. v. Richmond M. Co., 19 Nev. 231, this court by Hawley, J., said: "The jury were primarily the judges of the credibility and weight of the testimony of the respective witnesses. The district judge, however, 'has jurisdiction, on motion for a new trial, to decide, as a question of fact, whether the scale of evidence which leans against the verdict very strongly predominates’ (Phillpotts v. Blasdel, 8 Nev. 76), and, if there is in his opinion a ' clear preponderance of evidence against it, ’ he 'should not hesitate to set aside the verdict’ (State v. Yellow Jacket S. M. Co., 5 Nev. 422); but, in the exercise of this power, he 'should be careful not to invade the legitimate province of the jury, when they have manifested a fair and intelligent consideration of the evidence submitted to them.’ (Solen v. V. & T. R. R. Co., 13 Nev. 135.) The district court 'ought not to grant a new trial when there is conflicting evidence, except the weight of evidence clearly preponderates against the verdict. ’ If the district court grants a new trial upon this ground, 'the appellate court will not interfere unless the weight of evidence clearly preponderates against the ruling of the district court.’ (Treadway v. Wilder, 9 Nev. 70.)”
This court in Edwards v. Carson Water Co., 21 Nev. 492, by Murphy, C. J., said: "The granting or refusal of a motion for a new trial on the ground of the insufficiency of the evidence to support • the findings is addressed to the sound discretion of the judge who presided at the trial of the case in the lower court, and on an appeal from such order, where the court below, in the exercise of a sound discretion, grants a new trial on conflicting evidence, appellate courts have always refused to disturb the order. (Kellenberger v. Market Street Cable
The contention of counsel for appellant "that in violation of law he (the trial judge) has merely substituted his judgment of the facts for the judgment of the jury,” and hence has not yet legally disposed of the motion for a new trial, is not well taken. He has definitely passed upon the ground of the motion "insufficiency of the evidence to justify the verdict,” -and has granted the motion on that ground. It becomes a question, then, for us to determine, under the established rules, whether he has abused the discretion given him by the statute. That there is a conflict in the evidence is not disputed. That there is evidence sufficient to support the verdict under the well-established rule applicable in case the motion for a new trial has been denied must, doubtless, also be conceded. But a new trial having been granted upon the ground of insufficiency of the evidence, under the many authorities cited in this and the former opinion rendered in this case, we are not permitted to disturb the order, unless we can say that the trial judge manifestly abused the discretion reposed in him by the statute. (In re Martin, 113 Cal. 479, 45 Pac. 813.) This we are unable to say.
The order appealed from is affirmed.
