72 P. 905 | Cal. | 1903
This is an appeal by defendant from an order granting a new trial. The action was for personal injuries alleged to have been received by plaintiff while a passenger on defendant's street-railroad car. The verdict and judgment were for defendant. Plaintiffs moved for a new trial upon all the statutory grounds, and it was granted, — the judge granting the motion not being the judge before whom the case had been tried. There were affidavits used on the ground of newly discovered evidence.
It may be admitted that the case made out by plaintiff was not a strong one, and that, if the new trial had been denied, on an appeal from the order denying it this court would not have disturbed the verdict, either on the ground of insufficiency of the evidence or of newly discovered evidence. Still in passing upon motions for a new trial on either of said grounds the trial court has such discretion as precludes this court from interfering, except when it clearly appears that such discretion has been abused. (Cole v. Wilcox,
The order appealed from is affirmed.