concurring in part and dissenting in part.
I concur in the affirmance of that part of the judgment of the Court of Appeals reversing the trial court’s judgment for defendant notwithstanding the verdict. The majority opinion well articulates the reasons for such affirmance.
*322I dissent from that part of this court’s opinion reversing the Court of Appeals and affirming the trial court’s grant of a retrial on plaintiff’s claims. It is my view the decision to grant a new trial was based on a question of law only.
Therefore, I disagree with the standard of review used by this court, a standard only appropriate when the trial court orders a new trial due to questions of fact, such as when the jury verdict is against the manifest weight of the evidence. Rohde v. Farmer (1970), 23 Ohio St. 2d 82, 94; Yungwirth v. McAvoy (1972), 32 Ohio St. 2d 285, 286. This was not the case here, despite the majority’s bland assertion that “the trial court’s decision on the motion for a new trial involved questions of fact.”16
*323Where the grant of a new trial is based on the weight of the evidence requiring exercise of discretion of the trial judge, the controlling legal principle is contained in Rohde v. Farmer, supra, paragraph two of the syllabus, as follows:
“Where a new trial is granted by a trial court, for reasons which involve no exercise of discretion but only a decision on a question of law, the order granting a new trial may be reversed upon the basis of a showing that the decision was erroneous as a matter of law.”
The fact that a question of law involves a consideration of the facts or the evidence, does not turn it into a question of fact or raise a factual issue; nor does that consideration involve the court in weighing the evidence or passing upon its credibility. This proposition is well expressed in O’Day v. Webb (1972), 29 Ohio St. 2d 215, paragraphs one and two of the syllabus:
“1. When a trial court has specified as the reason for granting a new trial its error in submitting an issue to the jury, tile question before the appellate court on review is one of law, not of abuse of discretion; and the appellate court has the duty to decide whether, as a matter of law, the trial court erred in correcting itself by granting a new trial.
“2. The fact that a question of law involves a consideration of the facts or the evidence, does not turn it into a question of fact or raise a factual issue; nor does that consideration involve the court in weighing the evidence or passing upon its credibility.”
*324See, also, Ace Steel Baling v. Porterfield (1969), 19 Ohio St. 2d 137, 139, footnote 2.
In the case sub judice, the trial court granted a new trial because, in its view, the negligence could not be charged to defendant sheriff since he lacked sufficient funds to deal with emergencies of this type, and because counsel for both parties engaged in various alleged misconduct. These reasons do not involve the weighing of the evidence or exercise of discretion so as to constitute questions of fact.17 The decision was based on a question of law, an order reversible on a showing that it was erroneous as a matter of law. Rohde v. Farmer, supra, paragraph two of the syllabus. The Court of Appeals correctly reversed the trial court’s grant of a new trial, and was not required to consider matters beyond those stated by the trial judge as the basis for his decision. Accordingly, I believe we should adopt and follow the succinct and cogent analysis of Judge Day expressing the unanimous view of the Court of Appeals that the record does not warrant a new trial and that the verdict does not merit reversal because of misconduct of counsel.18
This court today, by apparently permitting trial courts to grant new trials solely because thay may be “convinced a manifest injustice has been done,” gives carte blanche to trial judges to substitute their decision for that of the jury. Such an arbitrary and capricious state of affairs reduces the “inviolate” right to a jury trial in civil cases to a mere sham, a condition to which I am unalterably opposed.
The opinion of the trial judge contained the court’s reasons for granting a new trial:
“Still, on reviewing this entire cause the court has concluded that it must:
“2. Grant defendant’s motion for a new trial in the sound discretion of the court as authorized by Civil Rule 59(D).
“The court has concluded that it erred in failing to direct a verdict for* * * [defendant] at the close of plaintiffs evidence because the evidence fails to show negligence which can properly be charged to defendant. The evidence completely fails to show that defendant sheriff had been provided any funds which would have enabled him to provide emergency alarm facilities and another deputy or two so that the attention given to visitors during visiting hours would not impair the attention given to prisoners in isolation during non visiting hours. * * *[T]he fault must rest on the Board of County Commissioners whose duty it is to make such provision. * * *
“Reluctantly, the Court finds it necessary to sustain defendants motion for a new trial, because counsel for plaintiff in the presence of the jury repeatedly stated assumptions of fact not based on evidence, inferred on several occasions that witnesses could not tell the truth about what they knew by reason of their employment and that opposing counsel were not honorable.***In addition, plaintiffs counsel disclosed the existence of the Sheriffs official bond, a matter completely irrelevant to the trial of the issues. Further, if defense counsel’s similar conduct did not evenly balance that of plaintiffs counsel, it was substantial and this court must conclude that here the failure of counsel to concentrate on what the evidence truly tended to prove was so great it did not contribute to a just verdict.”
The trial court also stated in its opinion as follows:
“Plaintiff argues vigorously that the judgment should not be disturbed because:
* *
“4. Defendant’s allegation that in the circumstances there was a presumption that decedent died as a result of his own negligence was not overcome by defendant’s evidence is incorrect because negligence is never presumed, a proposition with which this court concurs.
*323“HI.
“That defendant’s alternative motion for a new trial is also unwarranted, in plaintiffs view because:
“(1) the allegation that ‘to hold the sheriff personally liable for this verdict would be totally unjust’ is irrelevant in light of Ohio’s Revised Code Sections 341.01 and 311.05, a proposition in which this court concurs.
“(2) the verdict returned is not against the manifest weight of the evidence;
“(3) The $75,000 verdict is not excessive***.
“Consequently, the jury was at liberty to infer negligence and/or contributory negligence or the lack of either as to both plaintiffs decedent and defendant, as in their judgment, might best advance the cause of justice. * * * ”
These reasons all involve erroneous legal propositions and in no way concern the “sufficient evidence” or “weight of the evidence.”
The trial court specifically and unambiguously ruled out questions of fact by stating in its opinion that plaintiff was entitled to a directed verdict on the issue of liability, that the issues of negligence and contributory negligence were for jury determination, and that the amount of the verdict was not excessive.
The Court of Appeals addressed this issue as follows:
“The court below cited Civil Rule 59 (D) to sustain its position granting a new trial. It is evident from the trial court’s comment that both sets of trial counsel, representing the plaintiff and the defendant, were guilty of unbecoming conduct suggesting a lack of professionalism. However, the record does not warrant a new trial. The verdict of the jury does not merit reversal because of the tactics and misbehavior of counsel on both sides. The court’s instructions to the jury at the conclusion of the case cured any error which might have occurred in this area.”