(after stating the facts). In Taylor v. Grant Lumber Co., 94 Ark. 566, this court, reviewing an order of the circuit court granting a new trial, said: “The trial judge still has control of the verdict of the jury after and during the term it was rendered. Because of his training and experience in the weighing of-testimony, and of the application of legal rules to the same, and of his equal opportunities with the jury to weigh the evidence and judge of the credibility of witnesses, he is vested with the power to set aside their verdicts on account of errors committed by them, whereby they have failed in their verdict to do justice and enforce the right of the case under the testimony and instructions of the court. This is a necessary counterbalance to protect litigants against the failure of the administration of the law and justice on account of the inexperience of jurors.” Judge Battle in that case quoted from the Supreme Court of Missouri in Baughman v. Fulton, 139 Mo. 557, 41 S. W. 215, as follows: “Trial courts have large discretion in the matter of granting new trials, especially upon the weight of the evidence, and this court will not interfere with such discretion unless it ibe made to appear that it was improvidently exercised.” “Improvidently exercised,” as used above, means thoughtlessly exeroised or without due consideration. Webster, New Int. Diet.: “Improvidently.”
The Supreme Court of Missouri in the above case further stated as the uniform and settled rule of that State that “the Supreme Court will not, where there is substantial conflict in the evidence, review the action of the trial court in granting a new trial because the verdict is against the weight of the evidence,” and stating further that the granting of a new trial for the reason that the verdict is against the weight of the evidence rests peculiarly with the judge presiding at the trial. See also Rickroad v. Martin, 43 Mo. App. 597. This is the rule of many jurisdictions, and the rule of this court. Taylor v. Grant Lbr. Co. supra; Moore v. Ros Angeles Infirmary, 49 Cal. 669; McGregor v. Christie, 37 Ga. 557; Nagle v. Hornberger, 6 Ind. 69; Roberts v. Jones, 30 Ia. 525. See many cases collated in 3 Supplement Enel. Pl. & Pr. p. 255, under title, “order granting [new trial] rarely reversed.”
Where there is decided conflict in the evidence, this court will leave the question of determining the preponderance with the trial court, and will not disturb his ruling in either sustaining a motion for new trial or overruling same. “The Supreme Court will much more reluctantly reverse the final judgment in a cause for error in granting than for error in refusing a new trial.” House v. Wright, 22 Ind. 383; Oliver v. Pace, 6 Ga. 185. The witnesses give their testimony under the eye and within the hearing of the trial judge. His opportunities for passing upon the weight of the evidence are far superior to those of this court. Therefore bis judgment in ordering a new trial will not be interfered with unless his discretion has been manifestly abused.
We would have readily affirmed a judgment in favor of appellant under the evidence adduced. But such deference must be shown the trial court in passing upon the weight of conflicting testimony that his ruling will not be set aside merely because we differ with him on a question of preponderance. New York Piano Porte Co. v. Mueller, 38 Ia. 552. There were sharp conflicts in the evidence. The testimony of appellee and of Chew would have warranted the jury in returning a verdict in favor of appellee, and, had the jury done so, we could not have disturbed same on appeal. The instructions upon the whole correctly declared the law, as it has been often announced by this court. Little Rock v. Barton, 33 Ark. 448; Scott v. Patterson, 53 Ark. 49; Hill v. Webb, 55 Ark. 574; Hunt on v. Marshall, 76 Ark. 375; Featherston v. Trone, 82 Ark. 381; Branch v. Moore, 84 Ark. 468; Stiewel v. Lally, 89 Ark. 205; Blumenthal v. Bridges, 91 Ark. 212. Therefore the only question is, did the court err in granting a motion for a new trial on the facts ? and we are of the opinion that it did not, for the reasons above stated. Judgment absolute is therefore entered here in favor of appellee.
Hart and Kirby, JJ., dissenting.