
    CHICAGO, R. I. & P. RY. CO. et al. v. ZOBISCH et al.
    No. 15891
    Opinion Filed May 25, 1926.
    Rehearing Denied June 22, 1926.
    1. Appeal and Error — Discretion of Lower Court — Grant of Newi Trial.
    The discretion of the trial court in grafting a new trial is so- broad that its action in so doing will not be disturbed on appeal, unless the record shows clearly that the court has erred in the decision of some cleaT and unmixed question of law, and that the order 'granting the new trial is based on such erroneous view of the law.
    2. Same — Erroneous Grant of New Trial to Plaintiff After Failure of Evidence.
    In a case for negligent handling of a shipment of hogis, alleged to have resulted in the death of four of them, where there is no affirmative evidence of negligence, and the trial court sustains a demurrer to plaintiff’s evidence at the conclusion thereof, the action of the trial court thereafter in granting plaintiff a new trial is erroneous as a- matter of law.
    (Syllabus by Maxey, C.)
    Commissioners’ Opinion, Division No. 1.
    Error from District Court, Oklahoma County; George W. Clark, Judge.
    Action by Herman Zobisch et al. against the Chicago, Rock Island & Pacific Railway Company and Clinton & Oklahoma Western Railroad Company. ' Case dismissed, and defendants appeal irom an order of the trial court granting: plainfiifs a new trial.
    Reversed.
    C. O. Blake, W.' F. Collins, AY. R. Bleak-more. and A. T. Boys, for plaintiff in error Chicago, Rock Island & Pacific Railway Company.
    A. Carey Hough and Geo. A. I-Ienshaw, for .plaintiff in error Clinton & Oklahoma Western Railroad Company.
    Suits & Ilall, for defendants in error Herman Zobisch, Charley Zobisch, Paul Zobisch, and Fred Zobisch, partners, doing business under the firm name and style of Zobisch Grain Company.
   Opinion by

MAXI0Y, C.

The parties will be referred (o as they appeared in the court below. This was am action by Herman Zobisch. Charley Zobisch, Paul Zobisch. and Fred ZUbisch. doing business under the firm name <f Zt.bi.cn Grain Company, against the Clinton & Oklahoma Western Railroad Company and the Chicago, Rock Island & Pacific Railway Company, to recover damages on a shipment of hogs and sheep over the defendants1 lines of railway. Plaintiffs alleged that about the 31st day of July, 1921, they delivered one car load of hogs and sheep to the defendant- Clinton & Oklahoma Western Railroad Company, at Butler, Okla., for transportation to Oklahoma Oity, Okla.; that said hogs and sheep were in good condition at the time they delivered them to the Clinton & Oklahoma Western Railroad Company, and allege (hat they instructed or requested the Clinton & Oklahoma Western Railroad Company to water the hogs contained in said car on arrival at Clinton or Ralph, about 22 miles from Butler, the place of shipment, and allege that the defendant railroad company refused t<¡ eatery out said instructions, and did not whfcer the hogs at Ralph or Clinton, and that by reason of the failure to water said hogs, four of them were dead when they reached Oklahoma City, and that the value of said hogs was $10.85 per cwt., making them worth $95.48; that they received as salvage on the dead hogs $4.15, leaving a balance oí! $91.33, for which they asked judgment1. Answers were filed by the defendants consisting of a general denial anil a specific denial as to any negligence on their part or any neglect of duty. The case was tried on the 3rd day of February, 1924. Prior to the introduction of any evidence, the defendants moved for judgment on the pleadings and plaintiffs’ opening statement, for the reason that no act of omission or commission was alleged against the defendants. It appears from the record that the court did not overrule the motion at the time it was made, but reserved its decision until after the testimony was in, and then sustained the motion and dismissed the suit. A motion f:r a new trial was filed, and c<n consideration of said motion,' the court sustained the same and granted plaintiffs a new trial; and it is from this order granting a new trial to the plaintiffs that this appeal is prosecuted.

It is the well established rule in this jurisdiction, -that a motion for a new trial is addressed to the sound discretion of the trial judge, and unless it is shown that there was an abuse of discretion, the order granting the new trial will not be disturbed. In the case of Freeman et al. v. Farmers & Merchants Bank, 51 Okla. 588, 152 Pac. 105, the court laid dawn the following rule:

“The discretion of the trial court in granting a new trial is so broadi that its action in so doing will not be disturbed on appeal, unless the record shows clearly that the court has erred in the decision of some clear and unmixed question of law, and thnl the order granting the new trial is based on such erroneous view of the law.”

The trial court, at the close of the testimony, sustained the demurrers of the defendants, on the ground that the petition of the plaintiffs did not state a cause of action against the defendants, and that the evidence was not sufficient to justify the court in submitting the case to the jury. In order that we may understand the ground upon which the court sustained the demurrers and rendered judgment for the defendants, we will quote what the court said at the time:

“The Court: I do not think there is evidence here that would justify a jury in returning a verdict in favor of the plaintiff on rhe negligence of the defendant. I do not think that the court could say that the death of these hags was caused by the negligence ,of either defendant. That case that has been cited there has been suggestive. Ir sets forth the fact that some of the stock was -bruised, showiing- that it had been mistreated, and there was one or more dead at the time they reia'Clued the point of destination. The evidence in this case is that the hags — four of these hogs were dead, but there is not any evidence' thev were defftL upon theiir arrival here. If I understand the evidence of the witness with reference to it, they were dead when (hey were out on the dock somewhere, hut the mere fact of shipping and the death of the hogs is not sufficient to raise a presumption of negligence on tlie part of the defendants. The demurrer will be sustained, and judgment rendered in favor of the defendants.”

There is nothing in the record to show upon what ground the court changed its mind and gnalnted a new trial. It is the rule of this court, that it will very seldom and very reluctantly reverse a decision or order of the trial court which grants a new trial. It will toe done only when it can be seen, beyond any reasonable doubt, that the trial court has manifestly and materially erred with respect to some pure, simple, and unmixed question of law, and that except for such error, the.ruling of the trial court would not have been so made. Hogan et al. v. Bailey, 27 Okla., 15, 110 Pac. 890; Rogers v. Quabner, 41 Okla. 107, 137 Pac. 361; Missouri, K. & T. R. Co. v. James, 61 Okla. 4, 159 Pac. 1109; McLauren v. Peoples State Bank, 95 Okla. 6, 217 Pac. 187.

It will be observed from the order of thu court above quoted, that the court sustained ■the demurrer on the grounds that there was no evidence that would justify the jury in returning a verdict in favor of the plaintiffs on the negligence of the defendants. AVe agree with the court. After a careful reading of the evidence, we cannot find anything i of show negligence, or any violation ctf duty on the part of either of the defendant railroads.

Paul Zobiscli. one of the plaintiffs, and the person wnoi shipped the hogs, in question, testified that he loaded the hogs and sheep in the car at. Butler between 5 and © o’clock bn July 31st. He says he requested the man in charge of the train to water them 'at Ralph Junction. He does not know whether they watered them or "not, as he did not gu with them, hut in another part of his Testimony, he testified that there was no way of watering them at Ralph Junction. This seems to toe a place where the initial carrier, Clinton, Oklahoma & AVestern Railroad Company. connects with the other defendant, Chicago. Rock Island & Pacific Railway Company. There is nothing in the eyiden.ee to show that this carload of hogs and sheep was taken by Clinton, but for ought that the testimony shows, they might have been taken right on tlie main line of the Rock Island to-Oklahoma City. There is nothing in the testimony to show what time the hogs and sheep arrived at Oklahoma City. The agent, Mr. Foster, of the commission firm to which they were shipped, testified chat he did not see the hogs and sheep before they were unloaded, and that he does not know whether the four dead hogs in question were dead before they were unloaded or not. The balance of the hogs appeared to bo in good condition; and there was nothing to show tbac the dead hogs died for the want of water, or from some other cause.

In our judgment, there is a total failure of any evidence to connect either of said railroads with amy negligence or neglect of duty in the transporting of these hogs, and we think thel court was righc when it reached the conclusion that there was no evidence upon which a jury could base a verdict. Plaintiffs do not claim, in their motion for a new trial, that the judgment of the court was not sustained by sufficient evidence, or that it is contrary to law. Neither do they claim to have newly discovered evidence, which could not have been produced at the io.mer trial.

The motion for new trial is as lollows: (1) Error of the court in sustaining the demurrer of the de.endants to plaintiffs’ evidence. (2) Error of the court in rendering judgment in favor of the defendants. (3) Error of law appearing at the trial and excepted to by the plaintiffs.

AVe are nob unmind.ul of the fact that this court is slow r.o disturb the judgment of the court gran'ing a new trial. A party is entitled to have his day in court; both parties are entitled to this, tout neither parry is entitled to have more than one fair, reasonable opportunity to establish his claim or defense. To. allow more would be to pro-, ■tract litigation to an extent which w<Ai-!d preclude the administration of justice.

In our judgment, the iilaintiffs below had a fair trial, and the full opportunity to present their case, and it is presumed that they presented their case just as strongly as the facts would admit. Goldie v. Corder, 35 Okla. 247, 129 Pac. 3. It is conceded that if the court, in ordering a new trial, misapplies or mistakes a legal proposition, such ruling will be reviewed wii-h tlie same freedom as if made at any other station of tlie trial. In such a case this court does not supervise the discretion of the count bslow, but determines whether the view taken of the law was correct.

Now this court, in passing on the motion or demurrer, which it sustained, based it on his view of the' evidence that it did not justify the jury in returning a verdict for the plaintiffs. That is the only demurrer upon which it based its judgment at the time it dismissed the case at the close of the trial.

It is with reluctance that we reach the conclusion that the order of the court granting a new trial, under the record in this case, was error, and for th-it error the mse is reversed, and remanded to the trial court, with directions to set aside its order granting a new trial, and let the case stand dismissed.

Note. — See under (1) 4 C. J. p. 830 § 2813. (2) 4 O. J. p. 833 § 2814.

By the Court: It is so ordered.  