Morgan v. Los Angeles Pacific Co.

TAGGART, J.

Action to recover damages for personal injuries sustained by plaintiff while a passenger upon an electric car of the defendant, which was being operated in the city of Los Angeles. The verdict of the jury was for plaintiff for $5,000, and the superior court granted a motion by defendant for a new trial upon the ground- of insufficiency of the evidence to sustain the verdict. This appeal is from that order.

Several other grounds of motion are stated in the notice of intention, and it appears to be conceded by appellant that if the ruling of the trial court can be sustained upon any of the grounds stated in the notice, its order must be affirmed. We think, however, that under the rules applicable to the

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action of the trial court upon all matters relating to the weight of evidence and credibility of witnesses, the order of the superior court must be sustained on the ground therein stated. There is a clear and obvious distinction between the * duty of a trial court and the duty of an appellate court with respect to the decision of such questions on a motion for a new trial. The trial court cannot rest upon a conflict in the evidence, but must weigh and consider the evidence for both parties and determine for itself the just conclusion to be drawn from it. Where the decision is against the weight of the evidence, it is the duty of that court to grant a new trial. In considering the question upon the motion, the trial judge must act upon his own judgment as to the effect of the evidence. In an action tried by a jury, the parties are entitled to the judgment of the jury in rendering a verdict in the first instance; but upon a motion for a new trial they are equally entitled to the independent judgment of the judge as to whether such verdict is supported by the evidence.

(Green

v.

Soule,

145 Cal. 96, [78 Pac. 337].) The trial court having discharged this duty (which duty, says the supreme court, judges of the superior court are generally only too reluctant to perform), and made its order granting a new trial on this ground, that order will not be reversed by an appellate court, unless it appears that there has been a manifest abuse of the sound legal discretion which the trial court is presumed to exercise in passing upon such a motion.