dissenting.
There is a line of cases stating that where comparative negligence is involved under the pleadings and evidence, it is improper for a trial court to grant a new trial on the basis that the jury verdict for damages for personal injuries is inadequate. The order of the second trial judge granting the supplemental motion for reconsideration and reinstating the jury verdict was explicitly predicated on this rule.
Recent decisions following this rule include Beringause v. Fogleman Truck Lines, 209 Ga. App. 470, 472 (433 SE2d 398); Palo v. Meisenheimer, 199 Ga. App. 24 (403 SE2d 881); and Stroud v. Woodruff, 183 Ga. App. 628 (359 SE2d 680). However, each of these cases, and many others, merely approved of a trial court’s denial of a motion for new trial. Insofar as I am able to determine, at least since the adoption of the proposition that the first grant of a motion for new trial will not be disturbed by an appellate court as now contained in OCGA § 5-5-50, the above rule has not been applied by an appellate court to overturn a grant of a motion for new trial.
Indeed, I am aware of only one case where this rule may have been applied for this purpose. In Flanders v. Meath, 27 Ga. 358 (1859), the jury awarded an adolescent plaintiff $50 for injuries she received from the dray of defendant, the child’s representative moved for a new trial maintaining that the damages as found in the verdict were inadequate, and the motion for new trial was granted. The Supreme Court reversed the grant of that plaintiff’s motion for new trial, noting that there was evidence of the child’s own negligence in running in front of the dray. That decision states both a rule of law substantially the same as our current rule of comparative negligence along with a conclusion that the fault for the child’s injuries was wholly upon the child and that the small verdict to which the defendant acquiesced was more than to what the child was entitled. None*822theless, whatever the true holding of that case, it should not be viewed as controlling in the present appeal since it preceded the 1895 statutory enactment of the earliest versions of the concept now contained in OCGA § 5-5-50, and also predates the decision of Sparks v. Noyes, 64 Ga. 437 (1879) which is attributed by some as the source from which the statutory provision is derived.
Plaintiff argues that the decision on a motion seeking a first grant of a new trial is discretionary and that while the appellate courts may find no abuse of discretion in the denial of a motion for new trial grounded on inadequate damages when comparative negligence is an issue, such is not authority for the proposition that this result is required. I agree. The overall scheme provides a wide range of discretion to the trial court to grant a motion for new trial based on factual issues. See OCGA § 5-5-50, which provides the first grant of a new trial shall not be disturbed by an appellate court unless the law and facts require the verdict returned by the jury. The proper amount of damages is a factual issue. Atlanta Transit System v. Robinson, 134 Ga. App. 170, 171 (1) (213 SE2d 547).
Application of the proper rule is somewhat complicated by the fact that this is a FELA case. The revised OCGA § 51-12-12 has been held inapplicable to FELA cases, and a federally mandated standard of review for the amount of damages in FELA cases remains applicable. In FELA cases the jury determination of damages is inviolate absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial. Central of Ga. R. Co. v. Carter, 212 Ga. App. 528, 530 (3) (442 SE2d 269). Nonetheless, this FELA standard of review has been held to be consistent with the former Georgia standard as stated in OCGA § 51-12-12 prior to the 1987 revision of that statute. CSX Transp. v. Snead, 219 Ga. App. 491, 495-496 (4) (465 SE2d 690).
In Blanchard v. Westview Cemetery, 133 Ga. App. 262, 263-264 (1) (211 SE2d 135), this Court held that even where the evidence may demand a finding that defendant is liable to plaintiff, a verdict in the amount found by the jury is not demanded and the trial court has the discretion to grant a new trial even though the jury verdict does not suggest bias and prejudice on the part of the jury. The significance of this decision is that it clearly shows that the discretion attributed to the trial court under the language now stated in OCGA § 5-5-50 prevails over the language in the former OCGA § 51-12-12 which would require preserving a jury verdict in the absence of an inference of mistake or bias. Since the FELA standard of review stands in the shoes of the former Georgia standard, it too should yield to the grant of discretion in OCGA § 5-5-50.
And no reason has been stated in any previous case to curtail the *823trial court’s discretion in the particular instance of comparative negligence cases involving allegedly inadequate damage awards. Therefore, I would hold that a grant of a new trial was not precluded simply on this basis. In my view, the second trial judge relied on an erroneous interpretation of Georgia law. Therefore, I respectfully dissent.
Decided July 16, 1997 Reconsideration denied July 31, 1997 Taylor, Harp & Collier, John A. Harp, Jefferson C. Collier, for appellant. Casey, Gilson & Williams, Robert E. Casey, Jr., James E. Gilson, Matthew P. Stone, Sandra Gray, for appellee.I am authorized to state that Judge Beasley and Judge Eldridge join in this dissent.