This dissent is directed at Division III of the majority opinion. I agree that the issues were for the jury and that the court properly refused to direct a verdict for defendant. But upon what theory can the action of the trial court in setting aside the verdict and granting a new trial be upheld?
There is no conflict in the evidence. So far as the record shows the evidentiary facts are as definitely fixed as if stipulated. But concerning the ultimate facts — the inferences to be drawn by the jury from the undisputed physical facts — reasonable minds might well differ.
The grounds for new trial urged by appellee may be classified as follows: (1) The verdict is not supported by, but was contrary to, the evidence (2) the verdict is contrary to the instructions, and (3) the verdict fails to do substantial justice, is the result of passion and prejudice, is not the result of a fair and impartial trial, and is "basically wrong."
It will be noted that most of these come within the statutory enumeration of grounds for new trial but they also lap over into the field of "inherent power" of which the majority opinion speaks.
There can be no doubt this court has many times committed itself to the doctrine that the trial courts have a wide field of discretion in granting new trials where "the verdict of the jury fails to administer substantial justice" (Dewey v. Chicago N.W.R.R. Co., 31 Iowa 373, 378); "when the verdict is against the weight of evidence, or against the truth of the case" (McKay v. Thorington, 15 Iowa 25, 28); "where there is reasonable ground to believe that an unjust result has been reached which may be obviated on a trial to another jury" (Porter v. Madrid State Bank, 155 Iowa 617, 620, 136 N.W. 666, 667); *Page 1093 where the verdict is "not fairly sustained by the evidence" (Bloomfield State Bank v. Seabury, 200 Iowa 37, 39, 204 N.W. 259, 260); where there are numerous rulings and "no one * * * in itself involves an error to justify the setting aside of a verdict, yet when taking all of the exceptions together and considering them in connection with the trial court's knowledge and observation of the course and conduct of the trial it may properly conclude that the moving party has not had a fair trial" (Holland v. Kelly, 149 Iowa 391, 393, 128 N.W. 338, 339).
There are so many cases on the subject that any adequate review of them is impracticable. But running through them are cautionary admonitions and qualifications that should be kept in mind.
In the McKay v. Thorington case, supra, 15 Iowa 25, 28, for instance, Judge Wright says:
"But to justify such interference, the mind should be brought irresistibly to the conclusion that the verdict was not the result of a free, sound and unbiased exercise of judgment on the part of the jury, and that manifest injustice would result if the verdict is permitted to stand. It is not every case of doubt, nor where there is apparent preponderance of evidence against the conclusion of the jury, that justifies a court in setting aside a verdict."
And in the Dewey case, supra, 31 Iowa 373, 378, Judge Cole admonishes:
"* * * yet judges ought to use caution in the exercise of the power so as not to invade the legitimate province of the jury when they have manifested a fair and intelligent consideration of the evidence submitted to them, nor to injuriously protract litigation in pursuit of invariable and absolute justice in every case, for this cannot be attained."
These are early examples, but similar cautions run through later cases. In Post v. City of Dubuque, 158 Iowa 224, 227, 139 N.W. 471, 472, while the decision of the district court granting a new trial was affirmed, the opinion, written by Justice Gaynor, after pointing out that the discretion of the trial court is a *Page 1094 "sound judicial discretion to be exercised with care, judgment, and sound discretion," goes on to say:
"That courts have no right to set aside the verdict of a jury through mere caprice or whim, or to reweigh the evidence submitted, or sit in judgment on the credibility of witnesses, is too well recognized to need argument."
In Hensley v. Davidson Bros. Co., 135 Iowa 106, 112, 112 N.W. 227, 229, 14 Ann. Cas. 62, the lower court had set aside a verdict on its own motion. This court reversed the lower court, saying:
"While the inherent right exists to make such a ruling, the grounds for doing so should be made to appear in the record. If the court does not do this, the party in whose favor the ruling is made, in protection of the record, may insist that the ground of the ruling be entered. This may be done by an appropriate motion and the action of the court made quite as intelligible as though it had waited for the parties to make up the record in the ordinary way and according to customary judicial procedure."
This same doctrine is stated in Euclid Avenue State Bk. v. Nesbit, 201 Iowa 506, 207 N.W. 761. In the latter case, however, the decision of the trial court was upheld on other grounds.
In our late case of Sparks v. Long, 234 Iowa 21, 23,11 N.W.2d 716, 718, we said:
"Everyone is entitled to a fair trial of the issues he tenders to a court or jury, but due regard for our judicial system compels that he be accorded but one fair trial."
The record here is entirely devoid of any objections to evidence or to any of the proceedings except to the court's failure to direct a verdict for defendant. At no stage of the proceedings up to the return of the verdict did anything occur that met an exception from the plaintiff or an expression of disapproval by the court. There is, as I have said, no conflict in the evidence but merely a possibility of different inferences being drawn from the uncontradicted testimony concerning the tracks on the roadway and the position of the cars after the *Page 1095 accident. The four people concerned in the accident were the only eyewitnesses and they were all killed.
It was for the jury to say whether there was evidence of negligence of defendant's intestate's or of plaintiff's intestate's freedom from contributory negligence sufficient to meet the burden of proof which under the law rested upon plaintiff.
There is no record of any misconduct of counsel or jury or of any adverse ruling by the court. If the court in granting the new trial was exercising some "inherent right" the grounds for its exercise should have been made to appear in the record. Hensley v. Davidson Bros. Co., supra; Euclid Avenue State Bk. v. Nesbit, supra.
The case seems to be merely one in which the trial court drew a conclusion from the undisputed facts at variance with that drawn by the jury. It is hardly conceivable there can be any different record on new trial. Should another jury on new trial find for plaintiff, another trial judge could, with equal reason, set that verdict aside.
With all due respect, I think the ruling of the trial court constituted an abuse of discretion and should be reversed.
BLISS, MILLER, and MULRONEY, JJ., join in this dissent.