Garrison v. Trowbridge

1. New trial ? When granted, abuse of discretion. The granting or refusal to grant a motion for new trial lies within the sound discretion of the trial court whose order thereon will be reversed only for manifest abuse of that discretion. 2. Appeal and Error ? New Trial ? Interference with lower courts order. A general order granting a new trial will be upheld if it can be sustained on any ground stated in the motion therefor and a stronger showing is required to justify interference with an order granting, than one refusing, a new trial. 3. Appeal and Error ? Party must object to inadmissible evidence. Error could not be predicated on admission of evidence which was not objected to. 4. Contributory Negligence ? Must be based on conduct and actions of party at the time in question. The question of contributory negligence depends upon the conduct and action of the party at the time in question and not upon what someone else may have prophesied owing to his conduct at some other time. 5. New Trial ? Granting of new trial was not abuse of courts discretion. In an action for the death of a 77-year old pedestrian who allegedly was contributorily negligent in that he had formed the fixed habit of walking with eyes downcast, the granting of a new trial on the ground that the erroneous admission of the alleged statement made by the pedestrians daughter after the pedestrians death that "I knew something would happen to dad, the way he walked" was prejudicial, was not an abuse of discretion. - Page 506 6. Trial. An instruction on an issue concerning which there is no evidence is improper.