delivered the opinion of the Court:
We have given the testimony in this case careful examination and consideration, in the light of the able and earnest arguments of the counsel for the plaintiff; but in view of the conclusion which we have reached we think it unnecessary to review it or to express an opinion with respect to its relative weight. There is great conflict in the evidence, and it is enough for the purposes of another trial, to say, that there seems to be testimony enough on behalf of each party, if believed by the jury, and approved by the court, who has equal opportunity with the jury to see and hear the witnesses' and observe their manner and bearing while on the stand, to sustain a judgment for either.
It is true, as argued, that the jury, in the consideration of their verdict, are the exclusive judges of the credibility of the witnesses and of the weight they will give to their evidence; but this verdict is not to be carried into judgment save upon its approval by the court.
*169■ The verdict is entitled to the highest consideration, and approval of it is not to be withheld upon slight or trivial grounds. It should not be'set aside merély because the trial judge may have some doubt or misgiving as to its verity or justice; but it is equally his duty to do so when in his sound judgment justice will be subserved by ordering another trial.
In a case like this it is difficult for an appellate court to come to a satisfactory conclusion concerning the credence an¡d weight to be given to the respective witnesses. In the absence of impeaching testimony, they appear alike generally upon the record; their words, as reported, alone are before us.
The judge before whom the case is tried in the first instance, has the same opportunity as the jury to form an opinion with respect to the weight to be given to each witness; and one of the highest and most important functions of his office is the power to set aside a verdict whenever, in the exercise of a sound discretion, he considers that the jury, from any cause whatever, has returned an improper or unjust verdict.
One of his highest duties is the impartial and fearless exercise of this power, and his action ought not to be disturbed, by an appellate court, save upon conclusive reasons.
From the record before us, we could not justify ourselves in saying that the court below exceeded the bounds of its conceded discretion in setting aside this verdict and awarding a new trial.
While it is probable, the motion may have been sustained upon the ground only, that in the opinion of the court, the verdict was excessive in amount; still there is nothing in the record which would authorize us to indicate any amount of probable excess, upon the entry of a remittitur of which the judgment might be here rendered for the remainder. To do so in this case would be to usurp the functions of the jury. It is only in those cases where the findings of the jury may be separated into distinct parts, or where errors readily dis*170cernible and separable may have increased a finding, that we would feel ourselves clearly justified in directing or permitting a remittitur of a part.
If a verdict in tort be excessive, that fact alone would be persuasive evidence that the jury had not given to the whole case that calm, dispassionate consideration without which a verdict would ordinarily be a travesty of justice.
If a jury, through the influence, of passion or prejudice, should find a verdict for excessive damages, how could the cqurt satisfy itself that the same emotions did not dominate their minds in the consideration of conflicting evidence upon the question of negligence, which is the paramount issue of the case?
It follows from what has been said that the appeal should be dismissed, with costs to the appellee, and the cause rémanded to the court below, to be proceeded with in accordance with the practice in such cases.
Appeal dismissed.