I concur for the reasons set out in the opinion of Mr. Justice McDONOUGH. By this I do not mean to say that I have concluded that there was competent evidence to go to the jury and if so that had the jury concluded differently than it did that we would not have to reverse it because of an abuse of discretion had the court refused to grant a new trial. In this case the affirmance may rest on the fact that the assignments of the plaintiff were not well taken. We may leave until another time the question of whether, on reversal, this court should, even though there may have been some competent evidence in favor of the prevailing party, send the case down with instructions to dismiss because in any event it would appear that there was no or *Page 17 little likelihood that any new evidence could be produced by the prevailing party and as the case stood on appeal the evidence against the prevailing party preponderated to such an extent as to permit us to say that the jury must have been actuated by bias or failed to follow instructions or was indifferent to the evidence — in short, whether it concluded as no reasonable men would conclude under the evidence.