Hensley v. Davidson Bros.

McClain, J.

(dissenting).— If I correctly interpret the conclusion of the majority, their opinion may properly be cited in support of the general proposition that, whenever there is sufficient evidence to require submission of a case to the jury, it is necessarily error on the part of the court to set aside a verdict. To this proposition I cannot assent. The direction of a verdict is conclusive. It prevents a trial of any issue of fact to a jury. The granting of a new trial leaves the case still open. The judge may be satisfied that, while there is an apparent conflict in the evidence, the testimony on the one side or the other is so far discredited or incredible that justice requires the submission of the issue to another jury. If the result of a second trial is the same, he may not be justified in again interfering. The jurors primarily are charged with the duty of weighing conflicting testimony and determining the credibility of the witnesses; but the trial judge is also charged with a duty to prevent manifest injustice. He is entitled to a presumption in favor of his rulings, and, when the result is to award a new trial, we rarely interfere. The trial judge who heard the evidence in this case was in a situation to exercise a better judgment than this court can now exercise in reviewing his action. I *113think his ruling granting a new trial should not be reversed.