dissenting.
I cannot agree with the conclusion of my colleagues in this case. I do not believe that determination of the propriety of the action of the trial judge in the granting of the new trial involves a substitution by the trial court of his conclusion in opposition to one which the jury has properly reached.
Both parties agree that the only issue before this court is whether the trial court properly exercised the trial court’s broad discretion in allowing a new trial. It is apparent that a trial judge is justified in granting a new trial where the plaintiff fails to prove his case by the preponderance or the greater weight of the evidence (Read v. Cummings, 324 Ill App 607, 609, 610, 59 NE2d 325; Mesich v. Austin, 70 Ill App2d 334, 352, 217 NE2d 574). As indicated by the court in the case of Read v. Cummings, supra, at page 609:
“But after the verdict is returned a different question arises. It is then the duty of the trial judge to consider the weight of the evidence and if he is of opinion that plaintiff has not proven his case by a preponderance of the evidence, taking into consideration the fact that the jury has found otherwise, it is his duty to set aside the verdict and grant a new trial. And if the court does not do so but overrules the motion and enters judgment and the case is then brought to this court, we are not authorized to disturb the verdict on this ground unless the verdict and judgment are against the manifest weight of the evidence. This court in passing on the question must take into consideration not only the verdict of the jury but the fact that the trial judge saw and heard the witnesses, overruled the motion for a new trial and entered judgment. It requires much more for this court to set aside a verdict and judgment than is required of the trial judge. It is his duty to set aside the verdict if he is of opinion that the plaintiff has not sustained his case by a preponderance of the evidence, while the question of the preponderance of the evidence does not arise at all in this court.”
Accordingly, unless there is a clear abuse of discretion, a court of review will not set aside the order of a trial court granting a new trial, although as we have said in Foster v. VanGilder, 65 Ill App2d 373, 377, 213 NE2d 421:
“The trial judge, however, should not set aside a verdict and grant a new trial merely because he would have decided the case differently if he had been the trier of fact. Stobbs v. Cumby, 9 Ill App2d 138, 132 NE2d 448; Bobtex Industries v. Continental Baking Co., 4 Ill App2d 377, 124 NE2d 78; Read v. Friel, 327 Ill App 532, at 538, 64 NE2d 556; Finley v. New York Cent. R. Co., 19 Ill2d 428, at 436, 167 NE2d 212; or because he feels that inferences or conclusions other than those drawn by the jury might be more reasonable. Rouse v. New York Cent. & St. L. R. Co., 349 Ill App 139, at 146, 110 NE2d 266; Kahn v. James Burton Co., 5 Ill2d 614, at 623, 126 NE2d 836.”
We are confronted in this case with the typical concern which arises when a trial court allows a motion for a new trial. In the cause before us, the trial court, in a written memorandum of opinion, emphasized that the jury was unduly confused by inferences and statements made by counsel in examination of witnesses, which inferences were not based on evidence, and the court apparently felt that a new trial was required by reason of such examination as well as the feeling of the court that there was a failure of proof by a preponderance of the evidence.
The arguments and discussions of counsel in this case, and in many cases which have been determined in the courts of this State, have disclosed a confusion as the role of the trial court in determining whether to grant a new trial, notably where the trial court determines that the verdict is not based upon the preponderance of the evidence. This right of the trial court to grant a new trial where there is a failure to establish plaintiff’s cause of action by a preponderance of the evidence is not an empty gesture, but is a realistic implementation of the obligation of a plaintiff in proving his case by a preponderance of the evidence, as expressed under the law of this State and in appropriate instructions to the jury as to such law. If the jury in fact fails to heed such instruction relating to preponderance, the trial court has the right to order a new trial. This right, however, is not based upon a substitution by a trial court of his interpretation of the facts or a conclusion that the jury’s interpretation of the facts or inferences were not such as he would reasonably have concluded. The position of the trial court in this respect is entirely different from that of this court on appeal where the verdict is required to be contrary to the manifest weight of the evidence before the court would reverse. The trial judge has the primary role in determining whether a fair trial has been conducted and whether the basic principles of law applicable have been adhered to. In certain areas, such as the granting of a new trial, he is given a broad, though not unlimited, discretion. Unless such discretion is abused, the court of review would not set aside an order granting a new trial.
To say, in effect, that a trial court has no alternative other than to arbitrarily direct a verdict or enter a judgment notwithstanding a verdict or let the verdict stand would eliminate that unabused discretionary power of the trial court, and would permit the jury to be the conclusive arbiter in all cases unless the verdict of the jury is completely contrary to the manifest weight of the evidence. This would be a departure from a basic legal principle governing liability in this State that a cause of action is required to be established by a preponderance or greater weight of the evidence.
The test, therefore, becomes whether or not the trial judge abused his discretion in granting the new trial under the facts in the instant case. If the only issue in this court was whether or not the verdict was contrary to the preponderance of the evidence, I would concur with the conclusion of my colleagues. In this cause, however, the trial court obviously felt that, as a result of innuendos or misleading forms of questions, the jury may have been misled not only as to the condition of the lights but as to the other issues. While objections were not shown to have been specifically made so that the testimony was not ordered stricken, the effect thereof could still have been considered by the trial court in determining whether to allow the motion for the new trial (Jacobson v. National Dairy Products Corp., 32 Ill App2d 37, 43, 176 NE2d 551; Mattice v. Klawans, 312 Ill 299, 143 NE 866; Paliokaitis v. Checker Taxi Co., 324 Ill App 21, 51 NE2d 216).
Since the trial court had the benefit of observing the appearance and demeanor of the witnesses and the manner in which they testified and all the circumstances attending the testimony, the trial court is obviously in a better position to weigh the evidence than is a court of review. The right of the trial court to determine whether or not a new trial should be granted for failure to establish plaintiff’s case by a preponderance of the evidence or because a jury was misled by counsel’s questioning is underscored by the precedents referred to in this opinion. In analyzing all of the evidence relating to the issues as to failure to yield the right of way, failure to keep a proper lookout, and failure to stop or slow or turn defendant’s automobile to avoid the collision, or in the determination of whether the jury was misled by counsel’s questioning, I feel we cannot say the trial court abused its discretion.
As indicated, the trial court is allowed a broad discretion in granting a new trial and such motion is addressed to the sound judgment of the court. Unless we find that an abuse of discretion is affirmatively shown, a trial court’s decision in granting a new trial should not be reversed. In such cases, the courts of review have uniformly concluded that the trial judge, principally because he can observe the witnesses and their manner of testifying and the circumstances aiding in determination of credibility and the effect of questioning on jurors, is in better position than a court of review to weigh the evidence or determine the ultimate question of whether the trial was fairly conducted. It is not a question of whether our conclusion would be the same under such circumstances. Unless there has been a clear abuse of discretion, the granting of the new trial by the trial court should not be disturbed on review.
On the basis of the record before us, therefore, I believe that the granting of a new trial in this cause does not constitute such an abuse of discretion as would justify us in setting aside such action of the trial court. I feel that the order of the trial court should be affirmed.