Miller v. Central of Georgia Railway Co.

Pottle, J.,

dissenting. “Where there have been two concurrent verdicts in favor of a party litigant, the second grant of a new trial ‘on account of alleged conflict between the evidence and the verdict will be closely examined to see that the discretion of the court below has been justly and wisely exercised, in view of the peculiar issues and facts of each case and having due regard to the general consideration of the fitness of juries to ascertain the facts, and the necessity that there must be some end to litigation.’ Vassie v. Central of Ga. Ry. Co., 135 Ga. 8 (68 S. E. 782); Stewart v. Central Ry. Co., 3 Ga. App. 397 (60 S. E. 1).” Savannah Electric Co. v. Lackens, 12 Ga. App. 765 (79 S. E. 53, 54). I do not understand the law to be that the second grant of a new trial will always be reversed simply because the reviewing court finds a conflict in the evidence and no error of law has been committed. As I understand the decisions of the Supreme Court which have been followed by this court, the discretion of the trial judge in reviewing a second verdict is somewhat more limited than it is when he is reviewing a first verdict, but, nevertheless, he has a discretion as to setting aside the second verdict, and where he sets it aside the only duty imposed upon the reviewing court is to *861examine the evidence carefully to see that this discretion has been wisely exercised. I am, of course, bound by the decision rendered by this court when the case was here on demurrer, but nevertheless I am of the opinion that the trial judge did not abuse his discretion in granting a second new trial. To my mind it is extremely doubtful whether the plaintiff is entitled to recover at all, but conceding that she is, I am not prepared to say that the second grant of a new trial to the defendant is such an abuse of discretion as to require a reversal of the judgment.