concurring specially in part and dissenting in part:
While I agree with the majority’s reversal of the trial court’s action in this case, I disagree with its analysis and disposition. I would hold instead that the trial court improperly used remittitur and also that the granting of a new trial because the plaintiff refused to accept the remittitur was improper, and I would remand this case to the trial court for consideration of the defendant’s motions for a new trial and for remittitur on the alternative grounds raised by the defendant.
The defendant’s post trial motions sought a judgment notwithstanding the verdict, a new trial and remittitur. The new trial motion alleged numerous grounds for its request, including insufficiency of the evidence, excessiveness of the verdict, errors occurring during the trial, and errors in several of the instructions to the jury. The remittitur request was on the grounds that the damages award was excessive, and that it was not supported by the damages evidence. The trial court ruled that the evidence supported a finding that the negligence of the plaintiff was a proximate cause of his injury and directed that the special verdict be rewritten with the 45% negligence of the plaintiff inserted as proximately causing the accident. It then granted the remittitur based on its comparative negligence assessment and granted the new trial “in the event plaintiff does not accept the Judgment as entered by the Court in *397accordance with this order.” Thus, it is clear that the motion for a new trial was granted only because the plaintiff refused to remit that portion of the damages award which the trial court had determined was attributable to the plaintiff’s own negligence, and also that the trial court did not rule on the other grounds asserted by the defendant in its motion.
The function of remittitur is to enable the trial court to relieve a defendant from an excessive damages verdict, when the only issue is that the amount awarded by the jury was excessive in light of the evidence, thus sparing the court and the parties the expense and time of going through a new trial on all,of the issues. Checketts v. Bowman, 70 Idaho 463, 220 P.2d 682 (1950). The plaintiff is given an election by the trial court either to remit that portion of the damages award which the court has determined to be excessive or submit to a new trial. The trial court in this case was improperly using remittitur to substitute its own assessment that the plaintiff’s negligence was 45% causative of his injuries for the jury’s view that the plaintiff’s negligence was not the proximate cause of his injuries. The remittitur tool does not exist to enable the court to decide ultimate fact questions of liability of a party, but only narrow questions of excessive damages awards. See generally, 6Á Moore’s Federal Practice, § 59.05; 11 Wright & Miller, Federal Practice and Procedure, § 2815. The difficulty with the majority opinion is that it fails to recognize that the trial court used the remittitur improperly and consequently it needlessly tries to grapple with a comparison of the trial court’s factfinding and the jury’s finding. Compare Smith & Linderman v. Great Basin Grain Co., 98 Idaho 266, 561 P.2d 1299 (1977).
I conclude that the trial court erred in granting the motion for a new trial on the ground that the plaintiff refused to remit according to the court’s assessment of liability. However, the proper course for this Court should be to remand this case to the trial court for further consideration of the defendant’s motion, rather than passing on the alternative grounds as the majority has done.
This Court has frequently recognized the unique position of a trial judge in ruling on a motion for a new trial. Because of his proximity to the parties and the issues, and having presided over the trial itself, the trial judge is given a wide latitude in making his decision:
“This court has, in such cases as this, committed itself to the rule that where the trial court entertains the opinion that the verdict is not in accord with law or justice, Poston v. Hollar, [64 Idaho 322, 132 P.2d 142 (1942)]; Egbert v. Twin Falls Canal Co., 52 Idaho 39, 42, 11 P.2d 360, or is satisfied that the verdict is not supported by or is contrary to the evidence, Riggs v. Smith, 52 Idaho 43, 11 P.2d 358; Stone v. Matthies, 49 Idaho 277, 287 P. 951; Hall v. Johnson, 70 Idaho 190, 214 P.2d 467, or is convinced that the verdict is not in accord with the clear weight of the evidence and that the ends of justice would be subserved by vacating it, Tidd v. Northern Pacific Ry. Co., 46 Idaho 652, 270 P. 138, Turner v. First Nat. Bank of Bancroft, 42 Idaho 597, 248 P. 14, it may grant a new trial. Such matter is addressed to the sound legal discretion of the trial court and will not be disturbed by this court unless it appears to have been exercised unwisely and manifestly abused.” Sanchotena v. Tower Co., 74 Idaho 541, 547-548, 264 P.2d 1021, 1025 (1953).
See also, Klundt v. Carothers, 96 Idaho 782, 537 P.2d 62 (1975); Dawson v. Olson, 95 Idaho 295, 507 P.2d 804 (1973); Grimm v. Harper, 84 Idaho 220, 370 P.2d 197 (1962). In the first appeal of Dawson v. Olson, 94 Idaho 636, 496 P.2d 97 (1972), the defendant had filed post trial motions for a judgment notwithstanding the verdict and in the alternative for a new trial. The trial court granted the JNOV. On appeal this Court reversed the granting of the JNOV, but remanded the case to the trial court for consideration of the motion for new trial which had never been passed upon. On remand the trial court granted the motion for new trial on the ground that the jury *398had been erroneously instructed. The district court’s order granting the new trial was affirmed on appeal. Dawson v. Olson, 95 Idaho 295, 507 P.2d 804 (1973).
We have the same situation before us in this case that faced the Court in Dawson I. Here the entire Court is in agreement that the trial court erred in ordering the remittitur of 45% of the plaintiff’s verdict or, in the alternative, granting a new trial, albeit for different reasons. However, the trial court has never passed upon the various other grounds raised by the defendant in support of its motion for new trial. As the Court held in Dawson I, those issues should be remanded to the trial court for its determination based upon its superior contact with this case, particularly its ability to personally observe the witnesses, rather than rule on those issues, ab initio, at the appellate level.
As the above cited authorities make clear, the trial judge does not use an appellate standard of review when ruling on a motion for a new trial. His function is closer to that of a court of equity, and to a certain extent he is a “thirteenth juror” — not for the purpose of finding the ultimate fact issues of the case, as was attempted in this case, but so that he can evaluate the fact-findings of the jury and grant a new trial where, in his opinion, the verdict “is not in accord with [the] law or justice.” Dawson v. Olson, 95 Idaho 295, 298, 507 P.2d 804, 807 (1973).
Again it must be emphasized that the trial court in this case did not rule on the defendant’s alternative grounds for a new trial. The majority, however, has proceeded to review and reject these alternative grounds, sitting not as a trial court with broad latitude in such matters based upon its personal observation of the witnesses, but as an appellate court with a very narrow standard of review of a cold record. This case should be remanded to the trial court to allow it to first pass on those other grounds for new trial.
Finally, while the majority claims to abstain from any effort to resolve the apparent conflict between the two lines of authority in this Court concerning the standard by which a trial judge is to consider a motion for new trial, it seems to me that by drawing the distinction between general and special verdicts, and then concluding that motions for new trials where there is a special verdict are controlled by the decision of this Court in National Produce Distributors, Inc. v. Grube, 78 Idaho 33, 297 P.2d 284 (1956), and the dissenting opinion in Deshazer v. Tompkins, 93 Idaho 267, 460 P.2d 402 (1969), in fact this Court has now committed itself to that line of authority. The fact that the jury returned a special rather than a general verdict does not — and should not — affect the standard by which a trial court is to review a motion for new trial.
The peculiar opportunity of the trial court to better evaluate what occurred at trial has been expressed many times by this Court, of which the following is only representative:
“When a trial court is of the opinion that a verdict, based on conflicting evidence, or even where there is no conflict, is not in accord with law or justice, he may grant a new trial. Grimm v. Harper, 84 Idaho 220, 370 P.2d 197. The reasons for such rule are recognized as being (1) that the trial court, from seeing and hearing the witness, may have formed such a doubt as to the credibility of the testimony, or entertained such an impression from the surrounding circumstances and atmosphere of the trial, as to conclude that a fair and impartial trial was not had; and (2) that the exercise of such power is not an invasion of the jury’s function to decide the facts, for upon granting a new trial the questions of fact will again be submitted to the jury for a decision.” Warren v. Eshelman, 88 Idaho 496, 500, 401 P.2d 539, 541 (1965), quoted in Dawson v. Olson, 95 Idaho 295, 507 P.2d 804 (1973), Rosenberg v. Toetly, 93 Idaho 135, 456 P.2d 779 (1969), and Deshazer v. Tompkins, supra.
“The trial judge sees the witnesses on the witness-stand, observes the manner of their testifying, notes their apparent candor or fairness, or the want of it; hears *399the argument of counsel, and, in short, is in possession of many sources of information valuable in an inquiry as to whether justice has miscarried or not, and which cannot be made to appear in the record of the case which comes to the appellate court; and appreciating such fact, appellate courts have so frequently held, that it may be announced as settled law, that trial courts possess a discretion to be exercised wisely in the granting or refusal of new trials, and that such discretion will not be by the appellate court disturbed unless it manifestly and clearly appears to have been exercised unwisely and to have been manifestly abused. Such has been the holding of this court in many cases.” Say v. Hodgin, 20 Idaho 64, 68, 116 P. 410, 411 (1911), quoted in Grimm v. Harper, supra.
This Court recently reaffirmed this role of the trial court in Smith & Linderman v. Great Basin Grain Co., supra, when we stated:
“The more liberal rule applied to orders granting a new trial recognizes the advantage enjoyed by the trial court in reviewing the case because of the court’s active participation in the trial.” 98 Idaho at 275-276, 561 P.2d at 1308-1309.
As a result of the decision today, we have now changed the function of a trial judge in ruling upon a motion for new trial from that expressed in the foregoing cases to that of an intermediate appellate court which merely reviews the record to determine whether there is any substantial evidence to support the verdict. I dissent from that conclusion.
McFADDEN, C. J., concurs.