I am unable to concur in the majority opinion for the reason that in my judgment the record affirmatively shows that the trial court acted arbitrarily and abused its discretion in setting aside the verdict and granting motion for new trial, and that it contains errors in the application of certain rules of law, which are destructive of the right of trial by jury and of the right of appeal. These rights are defeated by rendering futile the legal processes provided by the Constitution and laws of the state to preserve and enforce them by the substitution of the judge for the jury and then by holding that his arbitrary and capricious acts and judgments are not subject to review by this court regardless of the record. That is what the majority opinion, under the facts in this case, amounts to, and such glaring and flagrant error should not be ingrafted into the body of the law of this state.
The rule expressed in the majority opinion that such verdict should meet the responsive and affirmative approval of the trial court is a good rule of law, but it is necessarily founded upon the assumption that the trial court possessed an unbiased and unprejudiced mind. If it is not within the province of this court to question the discretion of the trial court in striking down the verdict of a jury and granting a new trial of the cause, then we must hold that the trial court is infallible, that the judgment of the trial court is final and that the unfortunate litigants must repeatedly try their cause in such court until the jury finally brings in a verdict in accordance with the views and wishes of the trial judge, or else waive trial by jury in order to avail themselves of the right of appeal.
The remarks of the court clearly show a disposition an his part to substitute his opinion for that of the jury, and also show bias and prejudice. The court said:
"I am not blaming them (the girls) for getting in. The only man that hadn't had a drink and perfectly sober was driving the car and they relied on him to operate the car, but he didn't operate it.
"Now, I am going to tell you how I think this accident happened. My judgment is that the car the girls were in was going much faster than the ambulance. The ambulance came up and was coming from the right and under the rules of the road had the right if it got there about the same time, there is some proof one was there first and some proof the other — the Dodge car was *Page 196 going faster than the other car. They didn't observe the ambulance until they got nearly to it. They made a swerve to the left and the ambulance a swerve to the right and the proof shows that the ambulance is heavy, and when he swerved that heavy top it had a tendency to throw it back to the left and just at that time the automobile hit the corner of that car and that is what threw the ambulance over to the south and nothing else could have done it except a hard jolt. You couldn't have thrown the ambulance any other way in the world. I can't agreewith the jury about its findings. I think the defendant Shreve was absolutely negligent and a new trial will be granted. Mr. Rucker: May I be heard? The Court: Yes, I am going to grant it. I come near doing it before the jury. Mr. Rucker: I can't help but agree with Mr. Thomas that the instructions were eminently fair. The Court: I can agree they were not eminently fair; they are my own and I am dissatisfied with them. Mr. Rucker: Were eminently fair for this reason, there were no exceptions __________. The Court: (interrupting) The court has got a right to take his own exception. Mr. Thomas: We have got our right to except. Mr. Rucker: And there was no requested instructions filed that I know of, and if Mr. Hirsh's statement is to be taken as true, then he is entitled to a new trial. I am not here to resist any motion for new trial between the plaintiff and the defendant Hirsh (McKay), but I am here to point out to your Honor in a companion case tried in this county, an identical verdict was rendered on practically the identical testimony and identical issues. That was sustained. I am not here to say that the court is bound by the holding of any other judge, but where we have two juries in two identical cases rendering identical verdicts, it doesn't seem to me that the plaintiff is entitled to a new trial against us. You draw your deductions and Mr. Thomas and Mr. Hirsh and myself all drew our deductions from the physical facts. I say the physical facts speak eloquently, like Mr. Thomas, and I differed from him and the jury saw fit to follow my deductions. The physical facts speak for themselves, the best witness for the defendants. We have not only Shreve and Huff, but one entirely disinterested witness probably in better position to see, and he backs up their story to 100 per cent. There is no question but that the Dodge car, the car of my client, was knocked further to the west than it went after the accident. The Court: It knocked itself there, it was going so fast. Mr. Rucker: When an ambulance traveling at a high rate of speed __________ The Court: (interrupting). The ambulance was not going half as fast as the Dodge, that is my judgment about it. I think the physical facts prove it, I think the verdict of the jury was entirely contrary to the facts and the evidence and I can't consistently O. K. the verdict. A new trial is granted. Mr. Rucker: May I ask this __________ The Court: (interrupting) No, there is no answer. Mr. Rucker: May I ask you to state your reason for giving a new trial. You can't sustain the verdict __________ The Court: I can't sustain the verdict and I can do it on the ground of erroneous instructions. Mr. Rucker: Which one? The Court: Two, three or four of them and two or three requested ones which I didn't give. Mr. Rucker: To be frank with you, it is my intention probably to appeal to the Supreme Court and I would like for you, if you will please, to do so, to assign your reasons. Mr. Thomas: Your Honor stated I could save my exceptions and there are some I want to except to. The Court: Mr. Hirsh submitted me that paper and asked me for instructions and I gave one and meant to give another I ought to have given and overlooked. Mr. Rucker: May I be allowed this right before you finally rule on the matter? I have read to yon and I am offering in evidence at this time the record in the case of Jessie Mae Francs v. The McKay Funeral Home and H.R. Huff and Warren Shreve. The Court: There will be no evidence offered at this time; the same is denied. Mr. Rucker: The same being No. 86774, in the district court. At this time I would like to make the offer of proof of that record. The Court: The offer will be denied."
Counsel for these defendants showed the court that the two other young ladies injured in the same collision brought separate suits against the same defendants, and in both of those cases the jury returned a verdict against McKay and exonerated Shreve and Huff, as in the case at bar, and suggested to the court that where three juries and two district judges had come to the same conclusion upon the same state of facts, it did not seem fair nor proper to grant the new trial and force them to trial again, but in the face of these facts the verdict was set aside and new trial granted.
This court has properly held that new trials ought to be granted whenever, in the opinion of the trial court, the moving party has not had a reasonably fair trial. In Wilson v. Central State Bank of Muskogee, 92 Okla. 234. 218 P. 1061, in substance this court stated that a new trial should be granted whenever the trial court believed and is convinced that the moving party did not have a fair trial and had not obtained substantial justice, although it might be difficult to state the grounds upon paper so plainly that the Supreme Court could understand them as well as the trial court and the parties.
In the Alexandor Case, cited and relied *Page 197 on in the majority opinion, on three different occasions the trial court stated that in his opinion the plaintiff did not have a fair trial. But a careful search of the record of the case at bar reveals that at no time did the trial court state that in his opinion the plaintiff did not have a fair trial.
The trial court in the case at bar stated that he made a mistake on the instructions, yet, when requested by counsel, he refused to state to which instruction he was referring. Then the trial court stated that it was some requested instruction. The record conclusively shows there were no requested instructions filed, and the majority opinion correctly holds the instructions given were sufficient.
The trial court then stated that he just did not agree with the verdict of the jury. The reason for granting a new trial is clearly expressed when the court said: "Now, I am going to tell you how I think this accident happened." In line with that statement the court stated that in his opinion the Dodge car struck the ambulance and the Dodge car was going faster than the ambulance.
Let us test these two reasons by the record. Page 247 of the case-made is a true and correct picture of the condition of the Dodge car immediately after the accident. An examination of this picture shows conclusively that this car did not run into the ambulance, but, to the contrary, the ambulance ran into the side of this car. It is quite clear that the front of the car was not damaged at all and the damage done to the right side of the car clearly indicates that it received a severe blow at that point.
The trial judge stated that in his opinion he thought the Dodge was going faster than the ambulance. There were only six witnesses who estimated the speed of these two cars. Two of them stated the Dodge was going faster than the ambulance. Four of them stated that the ambulance was going much faster than the Dodge, and two of these four witnesses were disinterested and in a position to see the entire accident.
Bob Pamplin, a disinterested witness, testified as follows:
"Q. And according to your estimate of speed, the ambulance was traveling about twice as fast as the Dodge? A. Yes, that would be my best judgment. Q. Without a doubt, the Dodge was into the intersection first, was it not? A. Yes, I believe it was. * * * Q. Then from the point of impact, the Dodge car had traveled much farther west than north? A. Yes. Q. In other words — that's clear — you say the Dodge was struck almost square in the middle? A. That's my best judgment. It was struck almost in the middle."
Thereafter, Mr. Huff, Mr. McDonald, a disinterested witness, and Mr. Shreve testified; their testimony was introduced to the effect to show that Broadway was nearly 80 feet wide, that Tenth street is about 40 feet wide, and that the Dodge was over half way across Tenth street and on the east side of Broadway when the accident occurred, that it ended up just a few feet north of the sidewalk on the north side of Tenth street, and partially on the sidewalk on the west side of Broadway. Therefore, the Dodge, under the testimony of all the witnesses, traveled much farther to the west, or sideways, in fact nearly 60 or 70 feet west from the point of contact, than it traveled north following the accident. Each of these witnesses stated the ambulance was traveling much faster than the Dodge.
The evidence offered by the defendants, the testimony of the disinterested witnesses that were called to the stand, and the testimony of practically all the witnesses, is entirely borne out by every physical fact in this case. In addition, it is borne out by logic and reasoning. It was convincing to the extent that three separate and individual juries believed it was correct and arrived at an identical conclusion. And when three juries arrive at the identical conclusion, and two judges approve such a verdict, then it does seem strange that one trial judge, because he "thinks" the accident occurred some way other than it actually did occur, should be able to override the verdict of the jury.
If there had been any question as to whether or not the plaintiff had received a fair trial, then the Alexander Case could be applicable.
It therefore appears to me that the trial court was not satisfied with the verdict either because a judgment was not rendered against Shreve or the amount of the judgment was too small. The evidence as to whether Shreve was negligent was conflicting, therefore solely a question to be determined by the jury, and its verdict will not be set aside on motion for a new trial or by this court if there is any evidence reasonably tending to support it.
Section 399, O. S. 1931. provides that a new trial shall not be granted on account of the smallness of the damages, in an action for an injury to the person, and this court has repeatedly held that said section is an absolute limitation upon the power of *Page 198 the trial court to grant a new trial on the ground of the smallness of the verdict. Murray v. Decker, 132 Okla. 188,270 P. 38; K. C., M. O. Ry. Co. v. Allums, 133 Okla. 181,271 P. 949; Woodard v. Sanderson, 83 Okla. 173, 201 P. 361; and M., K. T. Ry. Co. v. Lindsey, 82 Okla. 165, 198 P. 1000.
It is evident from the record that the foremost reason in the mind of the trial court was to obtain a larger verdict for the plaintiff, or a judgment against the defendants Shreve and Huff. Of course, he did not state that as a reason, but if the review by this court is confined to the reasons assigned by the trial court, then it would be impossible to get at the real issues involved, and so, regardless of the specifications of error urged by the parties to the appeal.
It is my conviction the record in this case discloses that in granting the motion for a new trial, the trial court acted arbitrarily and clearly abused its discretion, and that its judgment should be reversed.