Dow v. Southern Pacific Co.

PRESTON, P. J.

Action for damages for the death of Percy Everett Dow, alleged to have been caused by the negligence of the defendants.

The ease was tried before a jury and resulted in a verdict and judgment in favor of the defendants. A motion for a

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new trial was made by the plaintiffs based upon all the statutory grounds. The court granted the motion, and in doing so, used this language:

“The Court finds that for certain errors committed at the trial and also in particular, that the evidence is insufficient to support the verdict and that the great weight of the evidence is against the verdict, it is hereby ordered that the verdict and judgment in this case is now set aside and the plaintiffs are granted a new trial.”

Prom this order the defendants prosecute this appeal.

It is well settled that where there is a substantial conflict in the evidence, an order granting a new trial upon the ground of the insufficiency of the evidence to support the verdict will not be disturbed on appeal,

in the absence of a clear and affirmative showing of a gross, manifest or unmistakable abuse of discretion.

The authorities supporting this rule are legion and we need only cite 20 California Jurisprudence, pages 26, 27 and 28, wherein innumerable cases so holding are collected. The evidence in the case at bar is conflicting on some of the vital issues.

This action is a companion case to that of

Johnson

v.

Southern Pac. Co.,

decided by this court on April 22, 1930, and found in 105 Cal. App., at page 340 [288 Pac. 81]-The case at bar was also before this court on a former appeal

(Dow

v.

Southern Pac. Co.,