Concurring- Opinion or
Frear, O.J.I concur in the foregoing opinion. There can be no doubt, as shown by the opinion in Capitol Traction Co. v. Hof, 174 U. S. 1, that the appellate court as well as the trial court may grant a new trial, but there is at common law, in tbe Federal courts and in most of the State courts a great difference be^tween the powers of such courts in this, respect. . In general the trial court may set aside a verdict of a jury and grant a new trial when the verdict is decidedly against the weight of the evidence, but an apellate court can do this only when there is error of law. But, as held repeatedly, both here and elsewhere, there is error of law if there is no evidence at all or not enough substantial evidence to support the verdict, that is, where there is such insufficiency of evidence in fact to amount to insufficiency in law. “In such cases the evidence is reviewed in the same manner by both trial and appellate- courts.” 14 Ene. Pl. & Pr. 784. As to Hie powers and duties of both appellate and trial courts in granting new trials on the ground of insufficiency of evidence, see Mt. Adams & E. P. I. R. Co., v. Lowery, 74 Fed. Rep. 463; Wright v. So. Exp. Co. 80 Fed. 85. There is, as recognized everywhere, in this, as in many other classes of cases, no fixed standard of easy application to go by. Each case must be judged by itself. But, while the court of course endeavors to uphold verdicts, it has its duty to perform and must exercise it in proper cases. In this jurisdiction the trial court has not gone so far as the Federal and most other courts elsewhere in setting- aside verdicts. As a rule their powers in this respect have been regarded as almost as limited as those of the appellate court. But our Supreme Court has usually followed the piraetice of appellate courts elsewhere, and accordingly our reports are full of decisions declining to- set aside verdicts where *679there is sufficient substantial evidence to support them, even when the weight of the evidence has seemed to. be against the verdict, but this court has always in what it considered proper cases, though naturally such cases have not been numerous, exercised the power to reverse decisions of the trial court and set aside verdicts when there has not been sufficient evidence to support them. See Bishop v. Kala 7 Haw. 590; Hayselden v. Wahineaea, 9 Haw. 51; Knudsen v. Palea, 10 Haw. 573. On the whole, I am inclined to think that this case is one of those in which this power should be exercised. Some courts go soi far as to hold that it is the duty of the appellate court to reverse the decision of the trial court and order a new trial irrespective of its own view as to the sufficiency of the evidence, when the trial judge expresses himself as strongly against the verdict a? he did in this case. Tacoma v. Tacoma L. & W. Co., 16 Wash. 317; State v. Billings, 81 Ia. 100. This is on the ground that it is the duty of the trial judge to set aside the verdict and. order a new trial when he so regards the evidence.