Efinoff v. Shephard

SCHOTTKY, J. pro tem. This is an appeal by defendants from an order granting plaintiff’s motion for a new trial after a verdict by the jury in favor of defendants. The action is one for damages for the wrongful death of plaintiff’s husband arising from the alleged negligent operation of an automobile by defendants.

Appellants have filed an opening brief consisting of three pages and have filed no closing brief. The sole contention of appellants is that the trial court abused its discretion in granting respondent a new trial upon the ground of the insufficiency of the evidence. It is a well settled rule of law that a trial court has a wide discretion in granting a new trial on the ground of insufficiency of the evidence. The trial judge is said to be in the position of a “thirteenth juror,” with full power to weigh the evidence and to reach his own conclusion as to the probative value thereof. As was said in Ogando v. Carquinez G. School Dist., 24 Cal.App.2d 567, at page 569 [75 P.2d 641] ; “Defendants’ second and final contention is that in any event the evidence would be insufficient as a matter of law to sustain a verdict in plaintiff’s favor, and that therefore the trial court erred in granting a new trial. There is no merit in the contention. The granting of or refusal to grant a new trial rests very largely within the discretion of the trial court—a discretion which is extremely wide; and its ruling will not be disturbed, especially where, as here, a new trial has been granted on the insufficiency of the evidence, unless there is a clear and affirmative showing of a gross, manifest or unmistakable abuse of the discretion it is called upon to exercise. (20 Cal.Jur., pp. 27-31.) In other words, it is only in rare instances and on very strong grounds that the reviewing court will set aside an order granting a new trial. (Morgan v. Los Angeles Pac. Co., 13 Cal.App. 12 [108 P. 725].) Furthermore, as frequently pointed out in the decisions, in considering such a motion it is not only the trial court’s province but its duty to" scrutinize and to weigh the evidence, and if in its opinion the facts upon which the decision of the jury is based are insufficient to justify that decision, or if it believes that the weight of the evidence is against the decision, a new trial should be granted, even though the inferences it may draw are opposed to those drawn by the jury. (20 Cal.Jur., pp. 26, 27.) If, therefore, on appeal the case shows a reasonable or fairly debatable justification for the trial court’s order or the evidence presents a situation where reasonable minds might differ [820]in their deductions, said order will not be set aside, even though the court of appellate jurisdiction might take a view different from that of the trial court (Kramm v. Stockton Elec. R. R. Co., 10 Cal.App. 271 [101 P. 914] ; Springer v. Pacific Fruit Exchange, 92 Cal.App. 732 [268 P. 951]), or believe the evidence would be sufficient to support a judgment in the event a new trial had been denied. (Glascock v. Watters, 136 Cal.App. 713 [29 P.2d 434].)”