
    [No. 17327.
    Department One.
    December 5, 1922.]
    Henry Austrem, Respondent, v. American Savings Bank & Trust Company, Appellant. 
    
    Appeal (406)&emdash;Review&emdash;New Trial-&emdash;Discretion. The granting of a new trial for insufficiency of the evidence will not be set aside, where it cannot be considered as a matter of law that the trial court abused its discretion.
    Appeal from an order of the superior court for Bang county, Ronald, J., entered February 6,1921, granting a new trial, after the verdict of a jury rendered in favor of the defendant, in an action in tort.
    Affirmed.
    
      Kerr, McCord & Ivey and Farrell, Kane & Stratton, for appellant.
    
      S. A. Keenan, for respondent.
    
      
       Reported in 210 Pac. 781.
    
   Holcomb,

-In this action to recover damages for alleged personal injuries sustained through the negligence of appellant in locking him in its fire-proof and air-tight safety-deposit vault for three hours, the jury returned a verdict for appellant.

Upon motion therefor by respondent, the trial court set the verdict aside and granted a new trial. The trial court specified two grounds upon which the new trial was granted. First, insufficiency of the evidence to justify the verdict; and second, misconduct of the jury.

On appeal, as entitling it to a reversal, appellant urges that the record of the facts shows that, as to the first, the trial court abused its discretion, and as to the second, there is no legal showing justifying it. We pass without discussion the second reason for granting the new trial, which will probably not recur in the next trial.

As to the first ground, the record shows conflicting facts as to the.negligence of appellant in the matter complained of. It also shows some physical injury, not merely “mental anguish,” as urged by appellant, including some slight nervous disorders attributed by respondent wholly to his confinement.

Upon this condition of the record,- we cannot say, as a matter of law, that the trial judge abused his discretion. He was there and heard the testimony and saw the witnesses. Upon motion for a new trial challenging the sufficiency of the evidence, he had the evidence to weigh and the judicial discretion reposed in him.

In such cases we have always refused to interfere. Funk v. Horrocks, 99 Wash. 397, 169 Pac. 805; Nelson v. Washington Water Power Co., 100 Wash. 339, 169 Pac. 896.

Affirmed.

Parker, C. J., Bridges, Mackintosh, and Mitchell, JJ., concur.  