(dissenting).
T i-i t M , , I agree that the order granting judg- , „ _ « , , . , .. ment for the defendant notwithstanding the verdict xor the plaintiff, must be set aside. However, I think the majority make a serious mistake when they take the extraordinary additional step of reversing the alternative order of the trial judge, granting a new trial because he considered the verdict against the weight of the evidence.
This court has never before reversed an order of a trial judge granting a new trial because of his conclusion on all of the evidence that the jury had reached an unjust result. At least, neither I nor any of my colleagues can find a precedent in our court for such action. Rather, we have recognized that the function in question is broadly discretionary, “requir[ing] that the trial judge evaluate all significant evidence, deciding in the exercise of his own best judgment whether the jury has so disregarded the clear weight of credible evidence that a new trial is necessary to prevent injustice.” See Zegan v. Central R. Co. of New Jersey, 3 Cir., 1959, 266 F.2d 101, 104. The opinions of other courts cited by the majority not only recognize that discretion but also emphasize its extreme breadth,
This traditional conception of the role of the trial judge has provided the one important limitation on the power of the jury to make an unimpeachable decision on the facts, even where the evidence is conflicting. The judge may not substitute the verdict he would have rendered on the evidence for that actually rendered by the jury. But he may avoid what in his professionally trained and experienced judgment is an unjust verdiet by vacating it and causing the matter to be tried again by a second jury, Thus, the essential institution of jury trial is respected and an expedient middle ground is maintained between the absence of any control over a jury’s verdict on conflicting evidence, on the one hand, an(f judicial usurpation of the fact find-inS function, on the other.
Under this scheme the only function of a reviewing court, once the trial court _ . , . , . , , has ordered a new trial, is to see whether ^ can haye been any bagig ^ rga_ gQn for the tr¡al judge,g conclusion as to ^he wejght of the evidence and the injustice of the verdict. The majority do not challenge this view, though they do not state explicitly what their understanding of our role is.
The present record discloses a sharp conflict of testimony whether Kaufman, *92the metropolitan sales manager, ever promised plaintiff, his subordinate district manager, a 1% commission on all gross sales of agents working under plaintiff. There are several remarkable aspects of this alleged promise which could reasonably have influenced the trial judge on this decisive issue. This commission would have more than quadrupled plaintiff’s salary of $150 per week, making him much higher paid than his immediate superior, Kaufman, or any other company executive, except the president. No other sales manager or supervisor received any such commission at all. Moreover, after the alleged promise was made, month after month elapsed with no payment of the 1% commission or indication of any step to fulfill such an obligation. Yet plaintiff himself admits that he made no formal demand for or inquiry about the large obligation for several years, and said nothing even informally about it to anyone for many months save for an occasional passing verbal inquiry said to have been addressed to Kaufman. The trial court may have reasoned that the amount said to have been promised was so abnormally large and plaintiff’s concern about nonpayment so unnaturally small as to make it incredible that the promise ever was made. In addition, the very vagueness of the alleged promise and the absence » ,. „ ,. . ., , of any mention of time m it may have increased the incredulity of the judge who heard the evidence.
In such circumstances it was neither arbitrary nor an abuse of discretion for the trial judge to grant a new trial, Whether in the same circumstances some other trial judge or any member of this court would have let the verdict stand is beside the point.
. . . The majority think tlm trial judge usurped the function of the jury. I think it is we who are impinging upon the function and discretion of the trial judge in a way that is serious, regrettable and without precedent in this court.