Opinion
February 5, 1952. Rehearing Denied February 19, 1952.
Appeal from the Circuit Court for Palm Beach County, Joseph S. White, J.
Earnest, Lewis, Smith Jones, and Jordan Johnson, all of West Palm Beach, for appellant.
Paty Paty, West Palm Beach, for appellee.
This is a personal injury case growing out of a collision between an automobile and a bicycle, whereby the appellee suffered serious injuries.
The complaint sufficiently alleged negligence on the part of the defendant. Two defenses were filed. The first defense was a general denial, and the second defense alleged contributory negligence on the part of the plaintiff. Trial was had upon the issues made and the jury returned a verdict for the defendant.
Several witnesses testified for the plaintiff and for the defendant. There were many conflicts in the testimony. The jury as well as the trial Judge heard the testimony, observed the witnesses on the witness stand, their demeanor, and conduct. The jury found a verdict for the defendant upon this conflicting testimony. Motion for new trial was filed in due course embodying several grounds among which was "The verdict is contrary to the manifest weight of the evidence."
Motion for new trial was argued and submitted to the Court and thereafter the Court made and entered its order granting a new trial as follows: "It is the view of the court that the verdict is contrary to the manifest weight of the evidence, and that a new trial should be granted upon the authority of Tampa Waterworks Company v. Mugge, 60 Fla. 263, 53 So. 943; Hamilton v. Wilson, Fla., 50 So.2d 884".
This appeal is prosecuted from that order and the appellant assigned as error: "The Court erred in granting a new trial against the defendant, J.W. Richbourg".
No good purpose could be served by summarizing the evidence for the plaintiff and the defendant. It is sufficient to say that it was conflicting, and in cases of this kind, there is a duty resting upon the trial Judge to determine whether or not in his opinion the verdict was contrary to the manifest weight of the evidence. The trial Judge did determine in this case that "the verdict is contrary to the manifest weight of the evidence".
In the case of Tampa Waterworks Company v. Mugge, 60 Fla. 263, 53 So. 943, on a motion for a new trial, the trial Judge made an order, part of which read as follows: "* * * the court being of the opinion that the testimony preponderates in favor of the defendant but being of the further opinion that the questions of fact were within the province of the jury, the motion to set aside the verdict and grant a new trial is denied."
In reviewing this order this Court said: "The circuit judge was in error in this ruling, if, as is expressed in the order denying the motion, he was of the opinion that the preponderance of the evidence was manifestly in favor of the defendant. It then became his duty to set aside the verdict and to grant to the defendant a new trial before another jury, and, in failing to exercise his judicial discretion in this respect, he deprived the defendant of a most valuable right, and was in error."
In this case the trial court having determined in the exercise of his discretion that "the verdict is contrary to the manifest weight of the evidence", would have failed to perform his full duty had he not granted the motion for a new trial. Having determined that the verdict was contrary to the manifest weight of the evidence it became his duty to set aside the verdict and grant a new trial.
Many other questions were presented. but having reached the above conclusion, it is unnecessary to decide the other questions.
Affirmed.
SEBRING, C.J., and CHAPMAN and ROBERTS, JJ., concur.