Opinion
6 Div. 168.
January 24, 1929.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
G. J. Prosch, of Birmingham, for appellant.
The verdict of the jury should not be set aside unless palpably erroneous or decidedly wrong or unjust. Central I. C. Co. v. Wright, 20 Ala. App. 82, 101 So. 815; 20 R. C. L. 277; Ex parte Louisville N. R. Co., 213 Ala. 333, 104 So. 837; Cox v. Thomas, 216 Ala. 282, 113 So. 261; Lawson v. Norris, 215 Ala. 666, 112 So. 129.
George Lewis Bailes and John T. Batten, both of Birmingham, for appellee.
When the trial court grants a new trial, the same inferences and presumptions in favor of his action in so doing are indulged as would be in case he refused a motion for new trial. Walker v. St. L. S. F., 214 Ala. 492, 108 So. 388; Smith v. Tombigbee N. R. Co., 141 Ala. 332, 37 So. 389; Cobb v. Malone, 92 Ala. 630, 9 So. 738; Nobles v. Bank of Eclectic, 217 Ala. 124, 115 So. 13; Landers v. Moore, 214 Ala. 20, 106 So. 225.
The appeal is from an order granting a new trial where the evidence was in sharp conflict. That ruling and judgment was by the judge, who heard the oral examination of the witnesses. The same inference and presumption in favor of this ruling or action in granting the new trial is indulged as in a case where the motion for a new trial is refused. Walker v. St. Louis-San F. R. Co., 214 Ala. 492, 108 So. 388; Ex parte Landers, 214 Ala. 20, 106 So. 225; Cobb v. Malone, 92 Ala. 630, 9 So. 738; Nobles v. Bank of Eclectic, 217 Ala. 124, 115 So. 13.
We have carefully examined the evidence, and it is "not so manifestly and palpably in favor of the verdict" as to "justify reversal of the order granting a new trial." Smith v. Tombigbee Northern R. Co., 141 Ala. 332, 37 So. 389; Ex parte Landers, 214 Ala. 20, 106 So. 225.
The judgment of the circuit court is affirmed.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.