specially concurring.
I concur with the result of the Court’s decision, but disagree with part II, section B of the opinion in which the Court has determined that the district court acted outside the bounds of its discretion when it granted a new trial for jury misconduct.
The trial court set forth the reasons for the grant of a new trial as follows:
Plaintiffs Motion for a New Trial pursuant to I.R.C.P. 59(a)(2), with respect to misconduct of the jury in that they failed to follow instructions is herewith GRANTED. The Court sits as a thirteenth juror when ruling on a motion for new trial and this Court would have concluded that Plaintiff was 25% negligent and Defendant was 75% negligent. The minor child was struck by Defendant’s vehicle while she was in the crosswalk at the intersection, Defendant testified he did not see the girl’s head protruding above his hood until she was on the right side of his vehicle near his right headlight, there were no skid marks left by Defendant’s vehicle and several witnesses *564testified that, in their opinion, Defendant was exceeding the posted speed limit, although there was also contradictory evidence regarding the Defendant’s alleged exceeding the speed limit. This Court concludes a new trial must be granted in order to correct a miscarriage of justice. This Court cannot predict the result of a second trial, however, this Court does believe if the evidence is presented properly by Plaintiff, there is a strong likelihood that the result would be substantially different from the first trial.
It seems clear that a driver who runs over a child well into the crosswalk who did not observe the child in sufficient time to brake has been negligent in several respects, particularly if the driver was speeding. Failure to assign some percentage of negligence to the driver under the facts as set forth by the trial judge is jury misconduct for failure to follow the instructions on comparative negligence.
Regardless of the particular rule designation given by the trial judge as a basis for granting a new trial, the factual recitation given by the trial judge warrants granting a new trial under other rule designations. Idaho Rule of Civil Procedure 59(a)(6) allows the trial court to order a new trial when there has been an insufficiency of the evidence to justify the verdict or other decision or when the verdict is against the law. The decision of the trial judge as articulated justifies a new trial under I.R.C.P. 59(a)(6). This Court should analyze the substance of the ruling and affirm if the substance warrants the ruling.
I.R.C.P. 59(d) allows the trial court to order a new trial on its own initiative “for any reason for which it might have granted a new trial on motion of a party.” This Court has instructed trial judges to act to avoid miscarriages of justice. In Quick v. Crane, 111 Idaho 759, 727 P.2d 1187 (1986), this Court stated, “the granting of a new trial on the ground that the verdict is against the weight of the evidence ‘involves an element of discretion which goes further than the mere sufficiency of the evidence. It embraces all the reasons which inhere in the integrity of the jury system itself.’ ” Id. at 767, 727 P.2d at 1195 (citations omitted). The Quick court continued as follows:
The trial judge is sitting at the heart of our trial process, a position we on the appellate level cannot duplicate. On the one hand, he does not sit to approve miscarriages of justice when they occur in his courtroom. His authority to set aside the verdict on a new trial motion is supported by clear precedent at common law. Indeed, far from being a denigration or usurpation of the right to a trial by jury, trial judges have always been regarded as an integral part of that right.
Id. at 767-68, 727 P.2d at 1195-96.
In this case the trial judge adequately set forth the basis for ordering a new trial, and the record in this ease clearly supports that basis. The decision should be affirmed under I.R.C.P. 59(a)(2), but even if the wrong subsection of the rule were designated by the trial judge, or the wrong rule designated, the decision should be affirmed on the reasoning stated by the district court when that reasoning clearly falls within an identifiable rule.