(dissenting). We agree, it is well settled by the weight of authority, that a motion for a new trial is addressed to the sound, legal discretion of the trial judge, and that an order granting or refusing it will not be disturbed, unless it appears there has been plain abuse of discretion. This case, however, does not come within that rule.
It is also granted that the rule applies to an order granting a new trial, on the ground of the insufficiency of the evidence. The discretion, however, exercised by the trial court, must be a sound, judicial discretion, and where the record, like this, affords nothing upon which such discretion rests, it is plain there is an abuse of such discretion.
It is conceded by the majority opinion that there is'no error at law in the record; that the instructions of law, as given by the court, were correct; at least, they afforded no ground for prejudicial, reversible error.
It is also conceded there was no error in the reception, nor in the exclusion of evidence offered. It must also be conceded, and we think it is, that the evidence is amply sufficient to support the verdict.
The action was one for damages against the defendant, for alleged negligence in the operation of a certain automobile, which, while being operated by him, was propelled against the plaintiff, who was, to some extent, injured. Among other defenses of the defendant, was that of contributory negligence of the plaintiff.
The questions of negligence and contributory negligence were each, exclusively, questions of fact for the jury; and, after having been instructed as to the law of negligence and contributory negligence, it was its exclusive right and duty to determine those questions. It did do so, and returned a verdict in favor of the defendant, thus finding that he was not guilty of negligence.
The evidence, as a whole, clearly shows that the verdict is sustained *383by it. The evidence, as a whole, shows that there is no insufficiency of evidence to support the verdict. In such case, it is plain the trial court abused its discretion in granting a new trial.
It is clear that the discretion exercised by the court was not a judicial,, but an arbitrary, one, and one entirely and wholly unwarranted by the evidence in the case.
To permit the exercise of such an unwarranted and arbitrary discretion, one wholly and entirely unsupported by any evidence, or any incident in the trial, is virtually to strike down the right of a jury trial, and the benefit derived thereunder, and to defeat the defendant’s constitutional right thereto; or if it can be held that a case, such as this, is not the exercise of an arbitrary, unwarranted discretion, it finding absolutely no support in the record, then no case could arise in which it could be said that a discretion exercised was an arbitrary one.
The right of trial by jury is the great bulwark of personal liberty and individual rights. The functions of the jury are, wholly and entirely, separate and distinct from those of the court, and, in the case of a trial by jury, unless there is error at law in the record, or unless the verdict of the jury is not sustained by substantial evidence, its verdict should be decisive upon questions of fact.
There are, perhaps, quite a number of people, and perhaps, certain classes of litigants, and perhaps, some courts, who think, that law and justice would be better and more scientifically administered by the courts alone, exclusive of the jury; that the determination of facts, as well as the law, should be, exclusively, a function of the court, and such' as they bewail the alleged ignorance and prejudice of the juries,, which of course do not exist.
But, for all this, the fact still remains that the jury, drawn, as it is, from the body of the people, remains the greatest bulwark of personal liberty and individual rights. So thought the fathers of our country, when they incorporated that principle in our Federal Constitution; that principle is a part of the Constitution of every state of the Union. It is the principle which protects the weak against the strong, the poor against the rich. It is a great equalizer of rights, and, in the last analysis, it is intended to be a protection, even against the powers of the court.
*384The case being wholly free from error, the judgment should be affirmed.
Bronson, J., concurs.