Butler v. Miller

Plaintiff sued to recover for personal injuries suffered as the result of having been struck and run upon by an automobile truck driven by defendant Schneider, as the employee of defendant Miller. The verdict was in favor of defendant Schneider and against defendant Miller.

Defendant Miller moved for and was granted a new trial “on the ground of the insufficiency of the evidence to justify the verdict and upon the further ground that the verdict is against law”; and from this order plaintiff has appealed.

It has been repeatedly held by our courts that an order granting a motion for a new trial must stand except it plainly appear that in making such order the trial court abused its sound discretion (Bledsoe v. DeCrow, 132 Cal. 312 [ 64 Pac. 397 ], Wright v. Yosemite Transp. Co., 28 Cal. App. 279 [ 152 Pac. 54 ], and cases cited therein). The concrete test to be applied here is this: “We may not disturb such an order (one granting a new trial) where there was at the trial a conflict of evidence upon material issues, unless we can say that a verdict in favor of the moving party would not have found sufficient legal support in the evidence.” (Tweedale v. Barnett, 172 Cal. 275 [ 156…