It is well settled that the first grant of a new trial, whether upon motion or .certiorari, will not be disturbed wherever there is a conflict of evidence on material questions, and it is not made plainly to appear that the judge has abused his discretion in the judgment rendered. There was some evidence in this case going to show that the defendant’s employés were in the exercise of all ordinary care and diligence in running its locomotive and cars at *98the time the injury to the plaintiff’s cattle, which is the ground of his complaint, was done. Whether there was a preponderance of evidence to this effect, or whether the verdict of the jury, which has been set aside, ivas sustained by the weight of evidence, we do not determine, as its decision is not at all essential to the application of the rule we have so often repeated upon this subject.
Judgment affirmed.