De Matteo v. Lapidus
| Decision Date | 07 March 1928 |
| Docket Number | 25387 |
| Citation | 218 N.W. 379,116 Neb. 549 |
| Parties | JAMES DE MATTEO, APPELLANT, v. JOSEPH LAPIDUS, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Affirmed.
AFFIRMED.
John M Macfarland and Gray, Brumbaugh & McNeil, for appellant.
Kennedy Holland, DeLacy & McLaughlin, contra.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY and HOWELL, JJ.
This case is here on appeal by appellant who was plaintiff below. The action was instituted in September, 1922, to recover damages from Joseph Lapidus, appellee, for injuries inflicted upon appellant near the corner of Twenty-second and Leavenworth streets, in Omaha, while appellant, traveling on foot, was about to cross Leavenworth street and appellee was driving an automobile east. There have been three trials of the case. Once it resulted in a ten to two verdict for $ 20,000. On motion that verdict was set aside. The second trial was before Redick, J., the verdict being for $ 20,000, which was also set aside. The third trial was before Troup, J., resulting in a verdict for $ 4,000. A new trial was denied appellant. A bill of exceptions was settled following the second trial, which is now before this court. There was no bill of exceptions in the third trial. This court is asked to set aside the order of Redick, J., granting a new trial and to reinstate the judgment for $ 20,000 entered on verdict in the second trial. The sole question to be determined by this court is whether or not Redick, J., abused the discretion which the law gives to trial judges in granting new trials. It is claimed by appellant that such discretion was abused, while the appellee claims the contrary.
An examination of the pleadings, the evidence given on the second trial, and the memoranda opinion of Redick, J., granting the new trial, drives this court to the conclusion that such discretion was not abused. The evidence shows great conflict between witnesses for the parties to the suit. Much of the evidence given by the witnesses for appellant is manifestly at variance with their former testimony in the first trial and with prior written statements signed by them as to how the accident happened. There was a shifting of grounds from the cause of action stated in the first petition to that set up in the amended petition upon which the second trial was had, which were wholly inconsistent, describing the accident as having taken place in a different location and in a different manner from that first alleged; the facts having been stated by appellant to his attorney in both instances. Some of the testimony was highly improbable. In many of the material matters, appellant's witnesses were sharply contradicted by appellee and a number of disinterested witnesses.
The memoranda opinion of Redick, J., stated he was convinced that grave injustice had been done and that the verdict reflected prejudice and passion. There seems to be no conflict between counsel for appellant and appellee as to the law; rather it is a question of abused discretion. The case of Schlaifer v. Omaha & C. B. Street R. Co., 98 Neb. 207, 152 N.W. 370, states: "A stronger showing is required to reverse an order allowing a new trial than to reverse one denying it." Wells v. Cochran, 84 Neb. 278, 120 N.W. 1123, says: "Granting a new trial at the same term a verdict is rendered will not be set aside, unless it clearly and unequivocally appears that there did not exist any tenable ground to support said order, but that the court thereby abused its discretion."
This case is not without its difficulties. It is claimed that the trial judge invaded the province of the jury, hence, as a matter of law, discretion was abused. If it were clear that this was the sole ground, we might be disposed to disapprove...
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