The opinion
Hart, J. (dissenting). It is true that according to the'uniform current of authority in this State, it is the duty of the trial court to set aside a verdict which is clearly against the weight of the evidence. But this statement of the law was not intended to authorize the trial court to weigh the evidence and substitute its judgment for that of the jury; for under our constitution, this is clearly the peculiar province of the jury.
The inquiry in such cases is not whether the judge acting as a juror would or would not have come to the conclusion returned by the jury in their verdict, but whether reasonable men charged with the duty of finding facts from the evidence, under the court’s instructions as to the law applicable to the case, would come to that result. Doody v. Boston & Maine Rd., 77 N. H. 161, Ann Cas. 1914 C, 846; Reeve v. Dennett, 137 Mass. 315 ; Atchison, etc. Railroad Co. v. Matthews, 58 Kan. 447 . See also State v. Tarrant, 24 S. C. 593; Beaudrot v. Southern Ry. Co., 69 S. C., 160 and Oregon Cas. R. R. Co. v. Oregon Steam Nav. Co. 3 Ore. 178 .
The fair inference to be deduced from the remarks of the trial judge is that while upon the evidence adduced at the trial, he would have found the other way, yet, after a full consideration of the matter, he was not so clearly of the opinion that the verdict of the jury was against the preponderance of the evidence, that, as a matter of law, he was required to set it aside. This construction of his remarks is borne out by the fact that the court approved the verdict, and entered judgment thereon.
Our Constitution provides that judges shall not charge juries with regard to matters of fact, but shall declare the law. If the jury abuses this power, it is the duty of the trial judge to grant a new trial; but he should do this only when he is clealrly of the opinion that the verdict of the jury is against the preponderance of the evidence; and not merely because he differs with the jury as to the preponderance of evidence.
I am authorized to state that Judge Humphreys concurs in this dissent.