Davis

— This is an action to recover damages for personal injuries alleged to have been received by plaintiff on a passenger train of defendant. The jury returned a verdict for plaintiff of fifteen thousand three hundred dollars. Defendant moved for a new trial upon various statutory grounds, including excessive damages. The trial court made an order that if the plaintiff should consent that the judgment be reduced to nine thousand dollars, the new trial would be denied, and that otherwise it would be granted. Plaintiff filed a written consent to such reduction and the motion was thereupon denied. Defendant appeals from the judgment and from the order denying a new trial.

The main proposition argued by counsel for appellant is the*, the denial of the motion for a new trial, upon condition that respondent remit part of the amount found by the jury, was unauthorized by law; and that if the court thought the verdict excessive, its duty was to have granted a new trial. This position is undoubtedly upon principle a very strong one;" and counsel have defended it very ably. They have also cited authorities from other states which support the proposition; although we are disposed to think that…