TRIAL BY JURY IN CIVIL ACTIONS From this point of view the question presented to the trial court on a motion for a new trial on the ground that the verdict is not sustained by sufficient evidence, is a question of law,1 essentially the same question that is, or may be, earlier presented by a motion to direct a verdict. It does not call upon either the trial court or the appellate court to weigh the evidence.2 This is definite and workable. It brings to the appellate court the same question that Ga. at 306 ('87); Kincaid v. Turner, 7 Ill. 618 ('45); Chicago City Ry. Co. v. McClain, 211 Ill. 589 ('04); Muldowney v. R. R. Co., 32 la. at 178 ('71); Cavender v. Fair, 40 Kan. 182 ('88); A. T. & S. F. R. R. Co. v. Hine, 5 Kan. App. 748 ('97); R. R. Co. v. Matthews, 58 Kan. 447 ('97); Milo v. Gardner, 41 Me. 549 ('56); Griswold v. Lambert, 89 Me. 534 C97); Baker v. Briggs, 8 Pick. 121 ('29); Cunningham v. Magoun, 18 Pick. 13 ('36); Hicks v. Stone, 13 Minn. 434 ('68); Kansas, etc. Ry. Co. v. Dawley, 50 Mo. App. at 489 ('92); Beckwith v. R. R. Co., 64 Barb. 299 ('65); Cothran v. Collins, 29 How. Pr. 155 ('65); Swartout v. Willingham, 26 N. Y. Sup. 769 ('93); Layman v. Anderson, 4 App. Div. (N. Y.) at 126 ('96); McGatrick v. Wason, 4 O. St. 566 ('55); Hall v. Hodge, 2 Tex. 323 ('47); Gibson v. Hill, 23 Tex. 77 ('59); Campbell's Lessee v. Sproat, 1 Yeates 327 (1794); Morien v. N., etc. Co., 102 Va. 622 ('04); Fearing v. DeWolf, 3 Woodb. & M. 185 C47); Gilmer v. City, 16 Fed. 708 ('83); Davey v. Aetna L. I. Co., 20 Fed. 494 ('84); Plummer v. Granite M. M. Co., 55 Fed. 755 C93); Pringle v. Guild, 119 Fed. 962 C03); Alsop v. Com. Ins. Co. 1 Sumn. 451 C33); R- i>. Poole, Lee's Cas. t. Hardwicke, 23 (1734); Carstairs v. Stein, 4 M. & S. 192 ('is)1 See, for example, Birdseye's Appeal, 77 Conn. 623 ('05); Stewart v. Elliott, 2 Mackey, 307 ('83); Simmons v. R. R. Co., no Ill. 340 ('84); Backus v. Clark, 1 Kan. 303 ('63); Met. R. R. Co. v. Moore, 121 U. S. 558 ('87); Hodges v. Ancrum, 11 Exch. at 218 ('ss).
- It may be doubted whether this is literally
true; whether the question for the court is in fact different in kind from the question for the jury merely because the evidence is substantially one way. Cf. Prof. J. B. Thayer's paper on "Law and Fact," in Jury Trials, 4 Harv. Law Rev. at 159, and the opinion of Lord O'Hagan in Dublin, etc. Ry. Co. v. Slattery, 3 App. Cas. n 55 ('78). But if it only means that it is for the court, and not the jury, it is not difficult to apply.
341
is presented to the trial court. It therefore avoids all occasion for the endless conflict of authority about a new trial on the weight of the evidence being a matter of discretion, and therefore not reviewable; about its being a question for the trial court, because the reviewing court cannot safely pass on the weight of the evidence without seeing the wit nesses; and about reversal only when the verdict is "plainly and palpably" against the weight of the evidence — matters which for present purposes are all passed by. We are asking whether any court has to deter mine the preponderance of the evidence in a jury case. The difficulty with this line of decisions seems to be that notwithstanding our great admiration for the jury; notwithstanding a succession of statutes curbing the power and influence of the judge in handling a jury trial; notwithstanding the pains taken to prevent the judge not merely from obtruding his view of the facts, but even from dropping a hint, neither courts nor the people have wanted the actual settling of the facts to rest with the jury. The drift of judicial decision against any such right of the jury has been simply overwhelming. An array of authority was cited above that would seem to be sufficient to settle most questions. But most of the cases are old; and in number they make some brave show of balancing the later list the other way only because such decisions are rela tively so scarce that there has been no hesitation in citing several from the same jurisdiction. Cases that typify the present state of the law read like this: "The trial court cannot rest upon a con flict in the evidence, but must weigh and consider the evidence for both parties, and determine for itself the just conclusion to be drawn from it. . . . He has the same opportunity as the jury to observe the manner of the witnesses, and to decide upon their credibility, and it is his duty to see that the verdict is not clearly against the weight of the evidence. . . . But in con-
