Opinion
No. 2005
Opinion Filed August 20, 1912. Rehearing Denied October 8, 1912.
APPEAL AND ERROR — Order Granting New Trial — Review. This court will not reverse the ruling of the trial court granting a new trial, unless it can be seen, beyond all reasonable doubt, that the trial court has manifestly and materially erred with respect to some pure, simple, and unmixed question of law, and that, except for such error, the ruling of the trial court would not have been so made. The Supreme Court will very seldom and very reluctantly reverse the decision or order of the trial court which grants a new trial. Duncan v. McAlester-Choctaw Coal Co., 27 Okla. 427, 112 P. 982.
(Syllabus by Sharp, C.)
Error from Superior Court, Pittsburg County; P. D. Brewer, Judge.
Action by Ellen M. Sharp against the Choctaw Railway Lighting Company. Judgment for plaintiff. From an order granting a new trial, the plaintiff brings error. Affirmed.
E. Allen Boyd and W. H. Moore, for plaintiff in error.
W. H. Fuller and Stuart, Gordon Liedtke, for defendant in error.
Plaintiff, the widow of Boyd Sharp, deceased, sued the defendant for damages for the wrongful death of her husband, caused by the negligence and carelessness of defendant company in the alleged construction, operation, and maintenance of its electric railway in and between the city of McAlester and the town of Hartshorne, in Pittsburg county. The jury returned a verdict for plaintiff in the sum of $4,500. Thereupon defendant filed its motion for a new trial, assigning eighteen grounds of error, among which were: (1) Misconduct of the jury and of the prevailing party; (2) because the verdict was contrary to the law; (3) because the verdict was not sustained by the evidence; (4) because the verdict was excessive, and given under the influence of passion and prejudice against defendant; (5) because of errors of law occurring at the trial; (6) because the court erred in giving instructions numbered 2, 3, 4, and 5; (7) because the court erred in refusing to give instructions numbered 1, 2, 3, 4, 8, 10, 11, and 16; (8) because the court overruled defendant's demurrer to the evidence.
The court, in the order sustaining the motion for a new trial, assigned no reason therefor, and we are not advised what specific grounds were urged and considered by the court as sufficient to justify its action, other than the reasons assigned in the motion for a new trial. The testimony taken at the trial is voluminous. Upon several material questions of fact the testimony was conflicting. In such cases trial courts are invested with a large and extended discretion, and such orders will not be reversed in this court, unless it is clear that the trial court has manifestly and materially erred with respect to some pure, simple, and unmixed question of law, and that, except for such error, the ruling of the trial court would not have been made. The question is one that has often been before this court. Ten Cate v. Sharp, 8 Okla. 300, 57 P. 645; Yarnell v. Kilgore, 15 Okla. 591, 82 P. 990; Trower v. Roberts, 17 Okla. 641, 89 P. 1113; Citizens' State Bank v. Chattanooga State Bank, 23 Okla. 767, 101 P. 1118; Farmers' Merchants' Nat. Bank v. School District No. 56 et al., 25 Okla. 284, 105 P. 641; Duncan v. McAlester-Choctaw Coal Co., 27 Okla. 427, 112 P. 982; Hogan et al. v. Bailey, 27 Okla. 15, 110 P. 890; Nat. Refrigerator Butchers' Supply Co. v. Elsing, 29 Okla. 334, 116 P. 790; Jacobs v. City of Perry, 29 Okla. 743, 119 P. 243; Chapman v. Mason et al., 30 Okla. 500, 120 P. 250; Stapleton v. O'Hara, 33 Okla. 79, 124 P. 55; Jamieson v. Classen Co., 33 Okla. 77, 124 P. 67; Ardmore Lodge No. 9, I. O. O. F., v. Dawson, 33 Okla. 37, 124 P. 66; Davis v. Stillwell, 32 Okla. 757, 124 P. 74.
The rule of decisions in the state of Kansas is the same as adopted in this state. Anthony v. Eddy, 5 Kan. 127; Field v. Kinnear, 5 Kan. 233, 238; Owen v. Owen, 9 Kan. 91; Atyeo v. Kelsey, 13 Kan. 212; Brown v. Atchison, etc., Ry. Co., 29 Kan. 186; City of Sedan v. Church, 29 Kan. 190; McCreary v. Hart et al., 39 Kan. 218, 17 P. 839; Sanders v. Wakefield, 41 Kan. 11, 20 P. 518; Willis v. Wyandotte Co., 86 Fed. 872, 30 C. C. A. 445.
Where a new trial is granted, this court will interfere only where the trial court misapplies or mistakes some principle of law, or manifestly abuses its discretion. New trials are to be favored, instead of being disfavored, where any serious question can arise as to the correctness of the verdict. If the trial court, in the exercise of a sound judicial discretion, after timely motion filed, is convinced that error was committed in the trial, it is his duty to grant a new trial. As was said in Hogan et al. v. Bailey, supra:
"Not only must the jury be satisfied of the righteousness of the conclusion to which it arrives, but, unless that conclusion meets the affirmative, considerate approval of the mind and conscience of the court, it should not, when challenged, be permitted to stand."
Where a new trial has been granted, both parties have another opportunity to have a fair and impartial trial upon the merits of the action; but where a new trial has been refused, the matter is ended, unless a reversal can be had. And where the court grants a new trial, and it does not affirmatively appear that the same was upon some pure, simple, and unmixed question of law, its decision is of controlling force on appeal, and this court will in such cases reverse only where the trial court has clearly abused its discretion.
The order of the court below, granting a new trial, will be affirmed.
By the Court: It is so ordered.