9 Mont. 182 | Mont. | 1890
The complaint alleges that the plaintiffs were in possession of a building of defendant, which they were occupy-.
It becomes necessary to examine the evidence adduced on the
Such is a résumé of the evidence upon the amount of damages. None of the other testimony is material to this inquiry. Upon this state of facts the court below granted the plaintiff and respondent a new trial. Such action is the alleged error. This court, in ruling upon an appeal from an order of the District Court granting a new trial, has said (Bach, J.): “ There was much conflict in the testimony upon this point, and the granting of a motion for a new trial was within the discretion of the judge of the court below, when based upon this ground [that is,
The rule above cited is based upon the ground that the judge below has heard the oral testimony, lias observed the demeanor of witnesses, and had the benefit of living, speaking testimony, which in the Supreme Court is reduced to a lifeless printed record; for which reason it is presumed that the trial judge was in a better position to exercise a sound discretion than is the appellate court, and, if it does not appear that he has abused such discretion, his action will not be disturbed. In the case at bar the judge who granted the motion was other than the one who presided at the trial. The court has not, therefore, the benefit of the judgment of the trial judge, based upon his view of the animate witnesses. We occupy the same point of view as the judge passing upon the motion in this case, as far as the advantage of judging testimony is concerned. This court has, as the judge below had, nothing but printed testimony. Neither has any light save from the inanimate type, and to that we must refer to decide whether the judge abused a discretion. Counsel for appellant confront us with an array of authorities to the effect that, if there be a conflict in the evidence, the verdict of a jury will not be disturbed, and urges for that reason that it was error in the judge below to set aside the verdict. But that rule is, further, that such conflict, to avail for the purposes urged, must be a substantial, aud not a shadowy, one. It is perfectly apparent that the judge below disregarded the evidence of the defendant Thompson as to the damages being twenty-five dollars, and that evidence only. With this evidence out, there was not a scintilla. of evidence to sustain the verdict. This court will not usurp the pi’ovince of the jury to pass upon the credibility of witnesses, and to determine the weight to be given to their evi-