342

THE GREEN BAG

sidering the question upon the motion he must act upon his own judgment as to the effect of the evidence.1 "These courts ought to independently exercise the power to grant new trials, and with entire freedom from the rule which controls appellate tribunals; they ought to grant new trials whenever their superior and more comprehensive judgment teaches them that the verdict of the jury fails to admin ister substantial justice to the parties in the case.2 "A trial court will be reluctant to set aside a verdict where a doubtful question of fact exists, simply because its judgment inclines the other way; but the mere fact that there is a conflict in the testimony does not relieve the court from examining the sufficiency of the evidence, nor make the verdict of the jury conclusive. . . . When ever the trial court determines that the ver dict is clearly against the weight or pre ponderance of the evidence, it should not hesitate to set it aside and grant a new trial, and, in arriving at this determination, the judge of the trial court must be con trolled by his own judgment, and not by that of the jury.3 "Upon a motion for a new trial the court is to weigh the evidence, where it is conflict ing, and if, in its judgment, it is manifest that the weight of the evidence is against the verdict as returned by the jury, its plain duty is to set it aside. While it is conceded that it is the province of the jury to find the facts, it is nevertheless the duty of the trial judge to see that the action of the jury is intelligent and just in the exercise of this function. This is a judicial discretion with which every court is invested, and which gives the trial judge a salutary supervision over the verdict of a jury.4 Decisions supporting this view of the matter are very numerous. Some of them, 1 2

4

Green v. Soule, 145 Cal. 96 ('04). Dewey v. R. R. Co. 31 la. 373 ('71). Coal, etc. Co. v. Stoop, 56 Kan. 426 C96). Ulman v. Clark, 100 Fed. at 183 ('00).

mostly recent ones, are collected in a foot note.1 The line of distinction between this group of citations and the previous one is, per haps, brought out most distinctly by some recent cases in which trial judges are rather brusquely reversed for acquiescing in verdicts with which they did not agree, because they supposed that the jury was the tribunal to decide the facts, and that a verdict, at least on conflicting evidence, settled something.2 1 Lee v. DeBardeleben, C. & I. Co., 102 Ala. 628 ('93); Schnittger v. Rose, 139 Cal. 656 ('03); Birdseye's Appeal, 77 Conn. 623 ('05); McCullough v. Ry. Co., 97 Ga. 373 ('95); Lincoln v. Stowell, 62 Ill. 84 C71); Wetherell v. R. R. Co., 104 Ill. App. 357 ('02); Rarick v. Ulmer, 144 Ind. 2 5 ( 95) I Tathwell v. City, 122 la. 50 ('03); Werthman v. R. R. Co. 128 la. 135 ('05); Williams v. Townsend, 15 Kan. 563 ('75); Buoy v. Milling Co., 68 Kan. at 443 ('04); Hurt v. R. R. Co., 116 Ky. (App.) 45 ('03); Reeve v. Dennett, 137 Mass. 315 ('84); Hyde v. Haak, 132 Mich. 364 ('03); McKenzie v. Banks, 103 N. W. (Minn.) 397 ('05); Loevenhart v. Ry. Co., 190 Mo. 342 ('05); Murray v. Heinze 17 Mont. 353 ('95); Sang v. Beers, 20 Neb. 365 ('86); Wendell v. Safford, 12 N. H. 171 (41); Treadway v. Wilder, 9 Nev. 67 ('73); Dickerson v. Payne, 66 N. J. L. 35 ('02); Kummer v. R. R. Co., 21 N. Y. Sup. 941 ('93); McDonald v. Met. St. Ry. Co., 167 N. Y. 66 ('02); McCord v. R. R. Co.. 134 N. C. S3 ('03); Ross v. Robertson, 12 N. D. 27 ('03); Dean v. King, 22 O. St. 118 ('71); Yarnell v. Kilgore, 15 Okla. 591 ('05); Dinan v. Supreme Council, etc., 213 Pa. 489 ('06); Agnew v. Adams, 26 S. C. 101 ('86); Robert Buist Co. v. Lancaster Merc. Co., 73 S. C. 48 ('05); Rochford v. Albaugh, 16 S. & D. 628 ('03); Spoke & Handle Co. v. Thomas, 114 Tenn. 458 ('04); White v. Ry. Co., 8 Utah 56 ('92): Brugh v. Shanks, 5 Leigh, 649 C33); Welever v. Advance Shingle Co., 34 Wash. 331 ('04); Clark v. Gt. North. Ry. Co., 2 Am. & Eng. Annot. Cas. (Wash.) 760 ('05), collecting many cases; Distilling Co. v. Bauer, 56 W. Va. 249 ('04); Collins v. Janesville, 117 Wis. 415 ('03); Mt. Adams, etc. Ry. Co. v. Lowery, 74 Fed. 463 ('96); Felton v, Spiro, 47 U. S. App. 402 ('97); Met. R. R. Co. v. Moore, 121 U. S. 558 ('87); Capital Traction Co. v. Hof. 174 U. S. 1 ('99); Wood v. Gunston, Style 466 (1655); Davies v. Roper, 33 Eng. L. & Eq. 511 ('56); Dublin, etc. Ry. Co. v. Slattery, 3 App. Cas. 1155 ('78). ' Thompson v. Warren, 118 Ga. 644 ('03); Kansas City, etc. R. R. Co. v. Ryan, 49 Kan. 1 ('92); Yarnell v. Kilgdre, 15 Okla. 591 ('05);