The trial court granted a new trial on its own motion, on the ground that there had been a plain disregard by the jury of the instructions of the court in such a way as to satisfy the court that the verdict was ren*388dered under a misapprehension of the instructions and under the influence of passion and prejudice. This was done under the following provision of C. S., sec. 6893:
“The verdict of a jury may also be vacated and a new trial granted by the court in which the action is pending, on its own motion, without the application of either of the parties when there has been such a plain disregard by the jury of the instructions of the court, or the evidence in the case, as,to satisfy the court that the verdict was rendered under a misapprehension of such instructions or under the influence of passion or prejudice.
In order to justify a district court in setting aside a verdict on its own motion, it must appear plainly and palpably that the jury disregarded either the evidence or the instructions of the court. The court has this power only where the error of the jury is such as to be at once apparent. (Townley v. Adams, 118 Cal. 382, 50 Pac. 550; Mizener v. Bradbury, 128 Cal. 340, 60 Pac. 928; Gould v. Duluth etc. Co., 2 N. D. 216, 50 N. W. 969.) Such cannot be the case where the court’s instructions leave the jury a free agent to find the facts one way or the other. (Eades v. Trowbridge, 143 Cal. 25, 76 Pac. 714.) Where a court has granted a new trial on its own motion, on a ground not authorized by the statute, the order will not be reversed if, on careful inspection of the record, it may be seen that the order may be supported on valid grounds. (Townley v. Adams, supra.) The above decisions construe statutes similar to our own in all material respects.
In the present case, on conflicting evidence, the trial court submitted to the jury, by its instructions, all the issues raised by the pleadings. It does not appear plainly and palpably that the jury disregarded either the evidence or the instructions of the court. Therefore, the action of the court in granting a new trial on its own motion was not warranted. The question as to when a new trial should be granted on motion of a party, under'the provisions of C. S., sec. 6888, is not involved in this ease, and the decisions of this court construing that section are not in point.
*389The order of the trial court granting a new trial on its own motion is reversed, and. the cause remanded for further proceedings in conformity with this opinion. Costs awarded to appellant.
Bice, C. J., and Budge, Dunn and Lee, JJ., concur.