The opinion
BLACKBIRD, Justice
(dissenting):
I cannot concur in the opinion of the Majority.
When the collision occurred, the automobile, in which plaintiff was occupying the driver’s seat, was not moving, but had stopped at the intersection’s traffic light, waiting for it to change from red to green.
The majority opinion recognizes that no negligence of plaintiff was an issue in the case, but it bases its decision to reverse the trial court’s order, sustaining plaintiff’s motion for a new trial, on its own conclusion that “There appears to be no misleading of the jury * * * ” in instructions of the trial judge that were worded as if negligence on the part of plaintiff was such an issue. The instructions, to which I refer, were as follows:
“No. J)
“You are instructed that the requirements under the statutes herein referred to do not prescribe all of the duties of the owners or operators of motor vehicles with respect to persons or property on the streets and highways, and that you still must consider whether or not the driver of either vehicle in question exercised ordinary care under the facts and circumstances existing in this case.
“No. JO
“You are instructed that the right, du-, ties and obligations of the drivers of the vehicles involved in the collision complained of were mutual and reciprocal.
“It was the duty of each of said drivers as they approached the point where the collision occured to exercise ordinary care in the management of his vehicle.
“It was the duty of each to drive his vehicle at a reasonable rate of speed and under reasonable and proper control.
“It was likewise the duty of each driver to use reasonable and ordinary care in keeping a lookout ahead and behind consistent with the safety of other vehicles and persons who might be using and traveling upon said street or highway.”
I have examined all of the instructions, considered each in the light of the others, and have found none that clarifies, or rectifies, the misleading impression that the above-quoted instructions gave anyone reading them, that the plaintiff’s duties, obligations, and negligence toward defendant were to be considered, as well as vice versa.
It is not claimed that, on the basis of the evidence, defendant was so clearly without fault that the jury could not have correctly found her negligent, and have returned a verdict for plaintiff. The trial judge apparently recognized this, when, in his order sustaining plaintiff’s motion for a new trial, he found that he had “committed serious and material error * * * ” in giving those instructions (among others), and that “plaintiff was not afforded a fair trial.” Said judge’s opinion that plaintiff’s cause was prejudiced before the jury by the con-cededly erroneous and inapplicable instructions he gave is further evidenced by his remark from the bench, at the hearing on *619 plaintiff’s motion for a new trial, that, in the manner in which the jury was instructed, “there would be no way for a plaintiff in such similar circumstances to recover in a case of this type.”
While I am fully aware of this court’s many previous decisions, in cases where the trial court has denied a new trial, to the effect that we will not reverse that court’s judgment on account of errors in instructions, unless it appears probable that the appellant was prejudiced thereby, this rule of appellate review does not apply to appeals from orders granting new trials. We have pointed out in numerous previous opinions that the showing for reversal of an order granting a new trial “should be stronger than where reversal of an order denying a new trial is sought.” See Draper v. Lack, Okl., 339 P.2d 784 .
The majority opinion recognizes the wide discretion of trial courts in granting new trials, but apparently, reverses the subject order granting a new trial on the theory that the record shows that, in so doing, the court “erred in some pure, simple, unmixed question of law.” The opinion fails to identify such an error in the order appealed from here, however, and I have failed to find it.
Since the respective attorneys’ closing arguments before the jury are not reflected in the casemade, we do not know what references, if any, they made to the court’s instructions, or how they sought to use them to obtain a favorable verdict for their clients; but the trial judge heard them and had the opportunity, denied us, of observing the reaction to them by members of the jury. As said in the quotation from Harper v. Pratt, 193 Okl. 86 , 141 P.2d 562 , that appears in Armstrong v. Chickasha Cotton Oil Co., Okl., 258 P.2d 1174 , 1177:
“The judge who presides at the trial of a case hears the testimony of the witnesses, observes their demeanor, and has a full knowledge of the proceedings had and done during the process of the trial, is in a better position to know whether or not substantial justice has been done than any other person. Where such judge sustains a motion for a new trial, it will require a clear showing of manifest error and an abuse of discretion before the appellate court will be justified in reversing such ruling of the trial court.
“As the granting of a new trial only places the parties in a position to have the issues between them again submitted to a jury or court, the showing for reversal should be much stronger where the error assigned is the granting of a new trial than where it is the refusal.”
In Pfrimmer v. Johnson, 195 Okl. 33 , 154 P.2d 765 , we held:
“This court will not reverse the ruling of the trial court granting new trial unless it can be seen beyond all reasonable doubt that the trial court has manifestly erred with respect to some pure, simple, and unmixed material question of law, and that except for such error the ruling of the trial court would not have been made. It will very seldom and very reluctantly reverse the decision or order of the trial court granting a new trial.”
This court is in no position to contradict the trial judge’s appraisal of the ef feet of his erroneous instructions upon the jury’s verdict. The majority opinion does not point out the “clear showing of manifest error” required by our previous decisions to reverse a trial court’s order granting a new trial, and I have been unable to discover any such error in such ruling. Therefore, I am of the opinion that this court is not warranted in reversing the order and/or judgment appealed from, and should affirm it.
For the foregoing reasons, I respectfully dissent.