Whitaker v. California Door Co.

KERRIGAN, J.

This is an appeal from the judgment, and from an order denying defendant’s motion for a new trial

[758]

The action was brought to recover damages for injuries received by plaintiff, a boy fifteen years of age, while operating a grooving machine in the defendant’s mill.

As there is a conflict in the evidence on the. question involved, a statement of the facts of the ease, or even a summary of them, is unnecessary. Appellant concedes, as indeed he must, that there is a conflict in the evidence; but he contends that the rule applied by appellate courts in such eases is inapplicable here under the peculiar circumstances of this ease.

It appears from the record that the case was tried before the Honorable W. E. Greene, sitting with a jury; that before the motion for a new trial was made Judge Greene died, and the motion was submitted to another judge of the same court, the Honorable John Ellsworth. Appellant contends that the judge who heard and denied the motion for a new trial, not having seen the witnesses, nor observed their manner of testifying, was in no better position to weigh the testimony than is this court, and that therefore the rule which prevents appellate courts from examining the testimony when there is a conflict does not apply. In other words, appellant desires that we should examine and weigh the evidence as though the motion for a new trial were presented directly to us.

Appellate courts will not disturb an order of a trial court in granting or refusing a new trial when there is a substantial conflict in the evidence, and the circumstance that the motion was decided by a judge of the trial court who did not hear the evidence at the trial makes no difference in the application of the rule.

In

Reay

v. Butler, 95 Cal. 214, [30 Pac. 208], the supreme court holds that the rule just stated is not adopted merely because courts of review do not have, as do trial courts, the advantage of observing the appearance and bearing of witnesses; but it is also founded on the essential distinction between trial and appellate courts, and grows out of a consideration of jurisdiction, that it is the province of the trial courts to decide questions of law and fact, and of the appellate courts to ' decide questions of law; and that appellate courts can rightfully set aside a finding for want of evidence only when there is no evidence to support it, or when the supporting evidence is so slight as to show an abuse of discretion. The court further says: “It has been held directly in several cases