Opinion
Writ of error dismissed for want of jurisdiction March 30, 1927.
January 26, 1927. Rehearing Denied February 9, 1927.
Appeal from District Court, Tom Green County; J. F. Sutton, Judge.
Action by Floyd Pool against T. M. Williams. Judgment was rendered for defendant. From an order granting a new trial, defendant appeals. Affirmed.
James Cornell and Collins, Jackson Sedberry, all of San Angelo, for appellant.
Pool sued Williams for damages for personal injuries resulting from a collision between his motorcycle and a Dodge automobile driven by Williams on the San Angelo-Paint Rock public road. In response to specific issues, the jury found appellant guilty of negligence proximately causing the collision, and that appellee was guilty of contributory negligence. The court rendered judgment for the appellant, but thereafter granted appellee's motion for a new trial This appeal is from said action.
In his order granting said motion for a new trial, the trial court did not indicate upon what grounds same was granted. If his action can be sustained on any of the grounds stated in the motion, it becomes our duty to affirm his judgment. And since we have reached the conclusion that the trial court's action should be sustained on one of the grounds set up in the motion, we deem it unnecessary to discuss the others. This ground was that the finding of the jury that Pool was guilty of contributory negligence was contrary to the preponderance of the evidence. We have read carefully all of the evidence and find it decidedly conflicting as to the place and manner in which Pool was driving at the time. Without setting out the evidence here or enumerating the witnesses whose testimony conflicted on this issue, it suffices to say that, as a matter of law, the evidence does not preponderate either way.
It is the contention of appellant that, since the jury found that Pool was guilty of contributory negligence, and there is evidence to sustain that finding, the trial court should not set such finding aside. This is the rule applied in the appellate courts, but it does not appear to be conclusively binding on the trial court. Few cases have come before the courts on appeal since the passage of the law (now article 2249, R.S. 1925) authorizing appeals from orders granting motions for new trials, but this court has held, and so has the Galveston court, that the same rules followed in reviewing the action of the trial court, in refusing motions for new trial under the old statute, should be applicable in reviewing the trial court's action in granting such motions under the new law. See Bledsoe v. Burleson, 289 S.W. 143, decided by this court December 8 1926; Brown v. Tyner (Tex.Civ.App.) 285 S.W. 674.
It is well settled that either the granting or refusing of new trials is largely within the discretion of the trial court, and his action will not be reviewed unless clearly abused. Wright v. Stone (Tex.Civ.App.) 273 S.W. 937; City of Brownsville v. Crixell (Tex.Civ.App.) 275 S.W. 430. And before an appellate court can say that such discretion has been abused, when the issue is on the evidence, his action must be contrary to a clear preponderance of the evidence. It is not enough that there be sufficient evidence to sustain the jury's finding, which is set aside.
The Galveston court, in expressing its views on the issue here raised, used the following language in Brown v. Tyner:
"It is evident, we think, that it was the purpose of the Legislature, in amending the law relative to appeals, authorizing appeals from orders of trial courts granting motions for new trials, to confer upon the appellate court the same, and only the same, powers to review the action of the trial court in granting motions for new trial as had theretofore been conferred upon appellate courts to review the action of trial courts in refusing motions for new trial.
"This being true, it may well be said, as was said by the Missouri court, that the trial courts have opportunities which appellate courts have not; that in presiding over the trial they are put in possession of facts which appellate courts cannot possibly attain; that seeing the witnesses they form opinions respecting their veracity, can observe whether they are biased or prejudiced, etc.; that all these considerations render it peculiarly proper that the question of granting new trials on account of the verdict being against the weight of testimony should be largely left to the discretion of the trial judge."
Under such circumstances, we are not authorized to reverse the action of the trial court in setting aside the jury's finding, where such finding was based upon conflicting evidence, which did not, as a matter of law, preponderate in support of that finding. Having reached this conclusion, it is unnecessary for us to discuss the other questions raised.
Finding no reversible error, the judgment of the trial court is affirmed.
Affirmed.