
    Ludwig Herbst, App’lt, v. The Vacuum Oil Company, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    New trial—Excessive verdict.
    Unless it clearly appears from the record that the trial justice has mistaken his duty and improperly invaded the province of the jury in setting aside a verdict as excessive and granting a new trial, the appellate court should not interfere, hut should allow his order to stand and the case he sent to a new jury for trial.
    Appeal by the plaintiff from an order granting the motion of the defendant, made on the minutes of the court, to set aside the verdict in favor of the plaintiff, and for a new trial, in an action tried at the Monroe Circuit in June, 1890.
    
      Geo. Truesdale, for app’lt; M. H. Briggs, for resp’t.
   Dwight, P. J.

The verdict was set aside on the ground that the damages awarded thereby were excessive.

The action was for injuries to the person of the plaintiff resulting from the explosion of naptha in the sewers of Rochester, in December, 1887, out of which occurrence grew the actions of Birch, Bridgman and others, against the same defendant, in all of which cases the liability of the defendant was adjudged by this court and by the court of appeals.

The motion to set aside the verdict on the ground that it awarded damages in excess of the amount fairly established by the evidence was one which the trial judge was expressly authorized in his discretion to entertain, Code of Civ. Pro., § 999, and an order made either granting or denying such a motion is, óf course, appealable to this court. But we are not advised of any case, and have looked in vain for one, in which the order of the trial court granting the motion, on the ground mentioned, has been reversed on appeal. The absence of such cases is significant of two facts: first, that the order is one not very frequently granted, and second, that the trial court is recognized as the tribunal most competent to review, in this respect, the verdict of a jury rendered to it. The latter proposition would seem to be especially true in cases of the particular character of the one before us. Here the question involved was of the character, extent and probable permanency of the injuries sustained by the plaintiff, and of those matters the trial court had, to a large extent,, ocular demonstration. Before it the plaintiff appeared in person, both as party and witness, during a protracted trial. One of the injuries of which he chiefly complained was that to his nervous system, producing, as it is said, shortness of breath, defects of sight and hearing, rheumatism, feebleness, a tottering gait, “a state bordering on paralysis.” These were symptoms or conditions more or less open to the observation of the judge to whose scrutiny the plaintiff was subjected throughout the trial. Moreover, where the testimony of other witnesses is conflicting, the trial court has the undoubted advantage of seeing all the witnesses on the stand, and noting the comparative frankness and intelligence with which their testimony is given. When, therefore, the trial judge finds himself constrained to set aside the verdict of a jury in such a case, it is not improper for the appellate court to defer largely to his judgment; and we think it not unreasonable to state the rule that, unless it clearly appears from the record that the trial judge has mistaken his duty and improperly invaded the province of the jury, his order should stand and the case be sent to another jury for trial. For undoubtedly a jury is to be the final arbiter of the question at issue, and the only effect of sustaining the action of the trial court is that it shall be submitted to a second jury either to confirm or modify the finding of the first.

In this case we are free to say that if the question had been submitted to us as an original one we should probably not have felt called upon, by what appears on the face of the record in this case, to interfere with the verdict already rendered. But recognizing the superior opportunity for judgment of the trial court in a case in which the evidence is, to say the least, strongly conflicting, we deem it our duty to affirm the order made below.

Order granting a new trial affirmed, with costs of this appeal to abide the event.

Macomber and Lewis, JJ., concur.  