Clara Joyce SMITH by Clara Gregory Smith, her Guardian ad litem; Clara Gregory Smith and Lela Smith, his wife; and William David Smith, Appellants,
H. S. MORONEY and Gerda Moroney, husband and wife, Appellees.
Rehearing Denied May 11, 1955.
[79 Ariz. 37] Moore & Romley, Phoenix, for appellants.
Stockton & Karam, Phoenix, for appellees.
This action in negligence was brought by H. S. Moroney and Gerda Moroney, his [79 Ariz. 38] wife, plaintiffs, to recover damages for injuries to the person of Gerda Moroney. At the trial the jury returned a verdict in favor of each of the defendants, Clara Joyce Smith, William David Smith, Clara Gregory Smith and Lela Smith, which verdict was set aside by the trial judge and an order was entered granting plaintiffs' motion for new trial upon the grounds that 'the verdict is not justified by the evidence.'
Nearly every material fact elicited at the trial is disputed either by one party or the other. However, they seemingly do agree that on May 30, 1951, the plaintiff Gerda Moroney was driving an automobile south on 21st Street in the City of Phoenix, Arizona, and that it collided with an automobile owned by William David Smith being driven east on Jefferson Street by the
defendant Clara Joyce Smith, a minor approximately fifteen years of age. Numerous witnesses testified to the cause of the accident and photographs and other evidence were introduced at the trial. An examination of the record leads us to conclude that the driver of either vehicle could be found negligent or that their combined negligence concurred in proximately causing the accident.
Defendants have appealed to this court from the order granting the motion for new trial urging that while the trial court may weigh the evidence in passing upon a motion for new trial it may not grant such motion where there is substantial evidence to support the verdict or the evidence is equiponderant or nearly so. This court recently stated in General Petroleum Corp. v. Barker, 77 Ariz. 235, 244, 269 P.2d 729, 735:
'We have examined the cases * * * and have come to this conclusion: A motion for new trial upon the ground the verdict is against the weight of the evidence, is addressed to the sound discretion of the trial court, and in ruling thereon the trial court may weigh the evidence. Upon appeal, the order granting a new trial will be upset where it is affirmatively shown the order is unreasonable and a manifest abuse of discretion under the state of the record and the circumstances of the case.'
From what we said it is apparent that the same test does not govern in this court as that which must be applied in the trial court. We have indicated that it is the duty of the trial court to:
'* * * pass on the weight of the evidence and if, after a full consideration of the case, in its discretion it believes that the verdict was contrary to the weight of the evidence, and that substantial justice has not been done between the parties, it is its duty to set aside the verdict and grant a new trial.' Young Mines Co. v. Citizens' State Bank, 37 Ariz. 521, 296 P. 247, 249.
[79 Ariz. 39] In considering the phrase 'weigh the evidence', it should be observed that this does not mean that the trial court is confined to a mathematical calculation of the number of witnesses on each side or to a determination of the quantity of evidence for or against a given proposition; but rather the phrase 'weigh the evidence' depends on its effect in including belief. Arnst v. Estes, 136 Me. 272, 8 A.2d 201; Chenery v. Russell, 132 Me. 130, 167 A. 857; O'Shea v. Pattison-McGrath Dental Supplies, Inc., 352 Mo. 855, 180 S.W.2d 19; Braunschweiger v. Waits, 179 Pa. 47, 36 A. 155. Therefore the quality of the testimony must also be considered by the trial judge. As this often consists of intangibles, no fixed rules can be set forth applicable to varying cases; but, nevertheless, they not only should be but must be considered by the trial judge.
We do not agree with the defendants that the trial court abuses its discretion in granting a motion for new trial where the evidence is equiponderant or nearly so or where there is substantial evidence to support a verdict, at least when used in the sense as used by defendants, that of simply measuring the effect of the words of one witness as opposed to the words of another or of others, for the reason that this deprives the trial judge of the right to determine the innate fitness of the justice dispensed. We will not disturb an order granting a new trial unless the probative force of the evidence clearly demonstrates that the trial court's action is wrong and unjust and therefore unreasonable and a manifest abuse of discretion.
It is therefore our conclusion that the order of the trial court granting a new trial where the evidence is equiponderant or nearly so or where there is substantial evidence to support the verdict is not error and the order granting a new trial in favor of the plaintiffs and against the defendant Clara Joyce Smith, driver of the automobile, is not unreasonable and a manifest abuse of discretion.
The defendant William David Smith, owner of the vehicle ...