The opinion of the court was delivered by
The only error complained of in this case is the granting of a new trial. This, under our statute, is doubtless an order which is reviewable; but as was said in the case of Field v. Kinnear, 5 Kas. 238, “ this court will require a much stronger and clearer showing of legal error, or abuse of judicial discretion, before it will interfere, when the new trial has been granted, than where it has been refused^ for the very obvious reason, that where a new trial has been granted an opportunity is afforded for another full and fair trial upon the merits of the case; but where it has been refused it operates as a final adjudication between the parties.” Here the new trial was granted because in the judgment of the district coui’t the verdict was against the evidence. That there was a contradiction in the testimony is conceded. Indeed, it is stated in the record that the court sustained the motion fora new trial upon the ground that it “believed the testimony of Culligan rather than that of Boone.” Now, it is peculiarly the province of the trial court to see that the jury have not erred in weighing the testimony. Not unfrequently jurors, little used to the sifting and weighing of evidence, are misled, and give undue importance to some of the testimony, or undue credence to some of the witnesses. It is essential to the due administration of justice that there be some tribunal to correct these errors, and none so competent or fitting as the court who with them has listened to all the evidence, seen all the witnesses, noticed all the indications in each witness of truthfulness or falsehood. In the very nature of things, an appellate court, which sees only so much of the case as can be reduced to writing, is wholly inadequate to such a duty. Hence, great reliance is placed upon the judgment of the trial court. "When it approves the finding of
Again, counsel for plaintiff in error contend there was error in the ruling of the district court because the motion for a new trial was not broad enough. The jury returned a general verdict, and with it answers to some questions of fact which had been duly submitted to them. The motion was, “'to set aside the verdict, and grant a new trial.” Nothing was said in the motion about the answers returned by the jury. Counsel claim that as no motion was made to set them aside they still stand, and must control any subsequent verdict, and therefore a new trial is unnecessary and improper. We do not so understand the law. When the verdict was set aside and a new trial granted, everything appertaining to the verdict fell; and the case stands for trial as though no trial had ever been had. We see no fact established by undisputed testimony conclusive against the claim of the plaintiff.
The judgment will be affirmed.