The record-union., 1891-01-12
pEPNnTNIENl TMo.

Appear lfDn superior court, Los Angeles
countg-Waiter Van Dyke. Judge.
For appellant John u. Bickneil
For respondent, Pepper & Iindenfeld, E. c.
Blower.
DEPARTMENT TWO.
seRAzM Ell Al, Respondent,
souTITERs PAcIFIc Co, no l4'o&o.
Appellant.
This is an action brought by the widow and
children OF .Iohii Scf;sniln deceased. 70 re-
da.ii;i.s,s for his tc;,ia- which : liesea
u haze occurred ih' railroad track pi 's,s-
fcnant. ;'i,d 20 i;tNt ',t- n ;,it>' "a it Ii'ii-
scicc ,,f defendant ans! its cnii'ios'a,. III
jury returned verdict i"r Defendant. aud toe
court below ets,aied : ncw iriitl. From fin'
order sr;inill" pi'inLiifs m"'i"ii i"r !, heN
trial defendant Appeals.
Orders of trial courts granting new 1rIalS are
not often disturbed, and yet when II appears
that such an order was granted through ms
apprehension of the law. ii should be reversed
as readily as order refusing Il new trial
But IN the case M bar it is impossible TO Know
the reasons upon which the order was based
The grounds OF the motion We numerous, In
cluding alleged errors IN rub upon the al
missb!4ty of evidence, and ;i,s Instructions
To the Jury; nsuiliciency O. le evidence 10
justify the verdict, ana that against law;
and misconduct and iTregu'2- y IN the pro
ceedings of the court and 1ura. Ihe oruer o.
the Court merely grants the T. ton III general
terms. - il could be said ~ the motion
rested entirely on supposed errors in giving or
refusing instructions to tnc ilrs, II might be
well uts,a,l titat the order She be reversed
for there were certainly no oI-a-s committed
in that regard against the piaintifiS. They
were as favorable IL not more so) 10 plaintiffs
as they could have been reasonably expected
under the law as established III tnis Statc
upon Tie subjects embraced i'll the inSttuc-
tiOpS: and ii there was any error committed
on this point there WAS noneof wibich pialntiii
should complain. and no other errors
of law sufficient 10 warrant a new trial. But
il the Court granted tie motion on the ground
of nlsuflicency of evidence to JUSTIFY the YER
dict las it may have done we are not prepared
10 SAY that in SO doing ii grossly abused it,;
discretion. Moreover. the point as 10 the IL
regularity OF the proceedings may have had
weight with the Court. A number OF written
Instructions which had been asked ANA re-
fused and had Eccl endorsed by the Judge
''nDt given" went Ia tie jury with those that
were given. This. OF course, was irrcgtiaru, u,tol
wrong: but sucli a :ssgulatritv would noi al
WAYS warrant court in setting ASIDE Il NcT-
dict. iof il might appear that II probably did
no harm. IN the case ut bar. however. thc
Court might have thought that harm WAS
done. For instance. there was contested Is
sue OF fact whether or not there was cross
uI.' al the place where the accident occurred;
md OIL an instruction referring to that matter
the Judge had inGorsed mot given, no. shown
10 be !; c:ossng.n And the Judge may have
thought hat this. and also the refusal Of other
instructions, might have been taken by the
jury as the expression of his opinion on qnes-
tons Of fact tie is presumed to have been
better acquainted with the whole case than
this court and to have known better what
might have influenced the jury. While, there
fore. upon the case rs we see it, We may not-bs
very strongly impressed with the conviction
that il was the duty of the Court below 10 set
aside the verdict, stii we do not feel it 10 be our
duty to set aside the order of the court That
course is rarely taken here, except when the
questions raised involve issues of law alone.
Order appealed from affirmed.
MCFARLAND, ].
We concur:
THORNTON, j.
SHARPSTEIS, J.