Wright v. Salzberger & Son

LANGDON, P. J.

The record in this matter presents two consolidated appeals. Two actions were brought against defendants, one by Thomas Osborne Wright, a minor, suing by his guardian

ad litem,

and the other by Joseph S. Wright, the father of said minor, for medical and hospital expenses 'incurred by him in treating the injuries sustained by his minor son. After a trial before a jury, a verdict in each case was rendered in favor of defendants. A motion for a "new trial was made, thereafter, by the plaintiff in each case. These motions were granted and orders granting new trials were made as follows: “It is by the court ordered that said motion for new trial herein be and the same is hereby granted on the ground of the insufficiency of the evidence to sustain the verdict herein and on the other grounds as set forth in said plaintiff’s notice of intention to move for a new trial on file herein.”

Appellants concede the well-recognized rule that a motion for a new trial is addressed to the sound, legal discretion of the trial judge and is not to be reversed upon appeal unless an abuse of discretion exists. However, this case is sought to be removed from the operation of that rule by the argument that the discretion of the trial court in granting a new trial is to be exercised upon the facts of the case and that when the record presents a situation where the defendant is entitled to a judgment in his favor as a matter of law and not upon questions of fact, then there is no room for the exercise of discretion by the trial court.

" Appellants’ proposition is a correct statement of the law. If it be true, as a matter of law, that no judgment could be rendered against the defendants under the facts in evidence, and they are entitled to a directed verdict, then, obviously, the motions for new trials after judgments for the defendants should have been denied. But we do not think the record presents such a question of law. Regardless of what we may think of the weight of the evidence, it is apparent from.a reading of the transcript of testimony that a conflict exists therein with regard to the material facts surrounding the accident—such facts as the portion of the street upon whiefi. the boys were riding in the “coaster” when it was struck by defendants’ .automobile; the visibility

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