Whitfield v. De Brincat

WARD, J. —

This is an appeal from an order granting plaintiff’s motion for a new trial upon the ground of the insufficiency of the evidence to sustain the verdict in an action for damages for personal injuries resulting from an accident on the Skyline Boulevard in San Mateo County, two former trials in the action having been had.

The question involved may be stated as follows: When a second new trial is granted the same party for insufficiency of the evidence, is a more positive and affirmative duty placed upon an appellate court to apply a more strict rule of review than upon the first appeal from such an order?

The first order granting a new trial on the ground of the insufficiency of the evidence will not be disturbed upon appeal unless there has been a manifest or unmistakable abuse of discretion.

(Ogando

v.

Carquinez Grammar School District,

24 Cal. App. (2d) 567 [75 Pac. (2d) 641];

Morgan

v.

Los Angeles Pacific Co.,

13 Cal. App. 12 [108 Pac. 735].) If, from all of the evidence upon which the decision was made, the trial court is convinced that a correct conclusion has not been reached, it is the duty of the court to grant a new trial. In

Estate of Caspar,

172 Cal. 147, 149 [155 Pac. 631], the court said: “In this state, though the evidence

[478]

pro

and

con

upon the issues be substantial and conflicting, it is the duty of the trial judge to set aside a verdict at least once if his conviction is that the verdict is contrary to the weight of the evidence. . . . With the statement that the number of times that a trial judge may so exercise his powers to set aside a verdict in a given case is in many states controlled by statute, as,in this state it is not, and that therefore it becomes the duty of the judge to set aside a verdict as often as his conscience is impressed with its injustice, it will suffice upon the general question to cite