Orchard v. Charlotte Harbor & N. Ry. Co.

• Decision Date: 25 November 1913
• Citation: Orchard v. Charlotte Harbor & N. Ry. Co., 66 Fla. 353, 63 So. 717 (Fla. 1913)
• Parties: ORCHARD v. CHARLOTTE HARBOR & N. RY. CO.
• Court: Florida Supreme Court

63 So. 717

66 Fla. 353

ORCHARD v. CHARLOTTE HARBOR & N. RY. CO.

Florida Supreme Court

November 25, 1913

Error to Circuit Court, De Soto County; J. T. Wills, Judge.

Action by Harry Orchard against the Charlotte Harbor & Northern Railway Company, a corporation. Judgment for defendant, and plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

When there is a sharp conflict in the evidence upon a vital point an order granting a new trial upon the first verdict will not be disturbed.

COUNSEL

[ORCHARD V CHARLOTTE HARBOR & N RY CO 63 So 717(1913)] Leitner & Leitner, of Arcadia, for plaintiff in error.

Wall &amp McKay, of Tampa, and Treadwell & Treadwell, of Arcadia, for defendant in error.

OPINION

COCKRELL, J.

This writ of error is directed to an order granting a new trial following a verdict for the plaintiff, Harry Orchard, under a declaration charging the railway company with negligently setting fire to his orange grove. The motion for a new trial contained 38 grounds, and was sustained generally.

The plaintiff in error entirely misconceives the rule of law governing appellate courts in reviewing the order of trial courts in the granting of new trials. A clear statement of the rule was made by this court in Farrell v. Solary, 43 Fla. 124, 31 So. 283, and this rule has governed this court in many published opinions, without any departure or modification. See cases cited in Jones v. Jacksonville Electric Co., 56 Fla. 452, 47 So. 1; Hainlin v. Budge, 56 Fla. 342, 47 So. 825; and Beverly v. Hardaway, decided this term. Assuming, as is contended by the plaintiff in error, that the evidence is such that we would not have interfered with the verdict had it met with the approval of the trial court, it does not follow that we should interfere with that broad discretion necessarily vested in that court, with its superior opportunities for gauging the credibility of the witnesses personally present, and the many minor incidents of the trial impossible of incorporation into the written record.

There was a sharp conflict in the testimony as to whether the fire was set out by the defendant railway company; further than the ascertainment of this conflict we need not go, and the order setting aside the first verdict based upon such conflicting evidence and granting a new trial will not be interfered with.

Order affirmed.

SHACKLEFORD, C.J., and TAYLOR, HOCKER, and WHITFIELD, JJ.,...