344

THE GREEN BAG

The notion that a motion for a new trial is addressed to the discretion of the trial judge, and is reviewable only for abuse of discretion, makes it a mere matter of "per sonal equation " in both courts. It is not very uncommon for reviewing courts to weigh the evidence as best they can; but even those who do not want the trial judge to interfere with a verdict unless the weight of the evidence is "plainly and palpably" against it, are not inclined to reverse him unless it is "very clear" that the weight of the evidence is "plainly and palpably" against him1 —if that furnishes any rule. Some of these courts seem to think a ver dict may be properly set aside when it is "obviously" the result of passion, preju dice, or corruption; that is, when from some moral lack the jury have returned a verdict without setting themselves hon estly to determine what the evidence in fact proves. This is, of course, too vague to be workable. Most of them frankly add to this moral ground, mistake. And by this they mean either that the facts were so complicated that they were beyond the capacity of the jury; or the jury failed to grasp the salient point, and so misjudged the relative importance of different parts of the evidence; or they forgot some of the testimony; or they were sleepy, and failed to take it in; or simply that they drew the wrong conclusion. This throws the whole field open, and means that there is noth ing conclusive about any verdict. There was a tendency at one time to hold a verdict on conflicting evidence impregnable, but any such distinction is now practically dropped.2 1 Cleckley v. Beall, 37 Ga. 607 ('68); Moran v. Harris, 63 la. 390 ('84); Anthony v. Eddy, 5 Kan. 129 ('69); Hicks v. Stone, 13 Minn. 434 ('68); Bank v. Wood, 124 Mo. 72 ('94); Kummer v. R. R. Co., 21 N. Y. Sup. 941 ('93). ■ Curtis v. Starr, 95 Cal. 376 ('90); C. & A. R. R. Co. v. Klaybolt, 112 Ill. App. 406 ('03); Tathwell v. City, 122 la. 50 ('03); Coal and Mining Co. v. Stoop, 56 Kan. 426 ('96); Herndon v. Lewis, 175 Mo. 116 ('03); Treadway v. Wilder, 9 Nev. 67 ('73); McDonald v. Walter, 40 N. Y. 551 ('69); Linderman v. Nolan, 16 Okla. 352 ('05); Brugh v.

There is nothing clearer than that the courts have never been satisfied to be tied down to a verdict. The first reported case that has come down to us, disclosing the determination to control the jury, other means having failed, by granting new trials was decided in 1655, and shows that the practice was not then new. The new trial was asked for because of excessive damages in a slander case. It is there said: "It is frequent in our books for the court to take notice of miscarriages of juries, and to grant new trials upon them, and it is for the people's benefit that it should be so; for a jury may sometimes by indirect deal ings be moved to side with one party, and not to be indifferent betwixt them, but it cannot be so intended of the court; where fore let there be a new trial at the next term. " 1 This attitude has been consistently main tained, but the courts have been generally, perhaps increasingly, more deferential to ward the jury. Even those that most ruthlessly override it, purport in terms to recognize some very important and inviol able function belonging to it. This makes the decisions abound in a curious selfcontradiction. For example : "The grand principle which is at the basis of jury trial, is never to be lost sight of, that to all matters of law the court are to answer, to all controverted facts the jury. The verdict of the jury is practically to be taken for truth. ... To render such a mode of trial safe and tolerable, there must exist a power somewhere to re-examine ver dicts with some freedom, and when it is manifest that juries have been warped from the direct line of their duty, by mistake, prejudice, or even by an honest desire to reach the supposed equity contrary to the law of the case, it will be the duty of the court to set the verdict aside." 2 Shanks, 5 Leigh, 649 ('33); Miller v. Insurance Co., 12 W. Va. 116 C77). 1 Wood v. Gunston, Style 466 (1655). ' Cunningham v. Magoun, 18 Pick. 13 ('36).