Unger

Dissenting.-—I dissent.

It conclusively appears from the record that the trial judge was of the opinion that a new trial should be granted, and that his sole reason for denying the same was his mistaken belief that he was without power so to do because of the fact that, there being a conflict in the evidence and he not having heard the testimony, he was unable to judge of the credibility of the witnesses as indicated by their demeanor upon the stand, and was therefore not in a position to consider the motion upon its merits. The court stated in denying the motion that it desired the appellate court reviewing its action to fully understand this as the reason for its conclusion, and it was on this precise understanding that the motion was denied.

As indicated in the prevailing opinion the court was mist alcen in the conception of its duty and functions in passing upon the motion. It is the province and duty of the judge of the trial court in such a proceeding to inquire into the sufficiency of the evidence to support a verdict or finding, and to grant a new trial if in his judgment such evidence is insufficient to support the decision. This power and duty are in no manner affected…

I concur in the affirmance of the judgment.

Lord Mansfield is said to have given this advice to a friend newly appointed to a colonial judgeship: “Never give reasons for your decision; your judgments will very probably be right, but your reasons will almost certainly be wrong.” The supreme court of this state expressed a similar thought when it said: “With the process of reasoning by which the court reached its conclusion we have nothing to do. That may have been erroneous and the ruling correct.” (Chabot v. Tucker, 39 Cal. 434 ; In re Kingsley, 93 Cal. 576 [ 29 Pac. 244 ]; Davey v. Southern Pac. Co., 116 Cal. 325 [ 48 Pac. 117 ]; People v. Bailey, 30 Cal. App. 581, 590 [ 158 Pac. 1036 ].) It is the duty of the trial court to grant a new trial when it is not satisfied with the verdict; and it is not bound by the rule as to conflicting evidence as is the appellate court. (Condee v. Gyger, 126 Cal. 546 [ 59 Pac. 26 ]; Wendling etc. Co. v. Glenwood etc. Co., 153 Cal. 411, 417 [ 95 Pac. 1029 ]; Weringer v. Rutledge, 180 Cal. 566, 569 [ 182 Pac. 31 ].) I am of the opinion that when the trial court considered and passed upon the evidence adduced at the trial and gave its order denying…

This appeal is from a judgment in the plaintiff’s favor, after a jury trial, for damages resulting from a collision between an automobile in which the plaintiff was riding and a street-ear of the appellant. The contentions of the appellant are chiefly predicated upon the evidence in the case, which will be reviewed in dealing with the various points made in the course of these contentions.

The collision occurred upon East 12th Street, in the city of Oakland, along which the street-car tracks of appellant extend, and at a point thereon a short distance east of the intersection of 12th Street with Fallon Street. The accident occurred between 5:30 and 6 o’clock in the evening of April 7, 1919, at which time there was much travel by street-cars, automobiles, and other vehicles at and in the vicinity of the immediate point where the collision took place. The plaintiff, immediately prior to the time of said collision and of his injuries, had been riding in an automobile truck owned and driven by one Parley Cook, and it is the appellant’s first contention that the plaintiff’s acts and conduct in riding in said automobile truck prior to and at the time of said accident constituted…