¶1dissenting. I am unable to join in an affirmance. Without further setting forth the evidence in detail, it is apparent from the record that the evidence is at least equiponderant, and if anything the scales tip in the defendant’s favor. In passing upon the discretionary ruling made by the trial court in setting aside the verdict and ordering a new trial, the majority opinion appears to express the view, — right or wrong, — we cannot question its propriety in this case. It is my view that the evidence does not justify such a conclusion. An untarnished verdict, based upon sufficient evidence, should not be destroyed under the guise of a discretionary ruling.
¶2Many attempts have been made by courts to define judicial discretion with no harmonizing result. As stated in the case of Hubbard v. Hubbard, 77 Vt. 73 at pages 77 and 78, 58 Atl. 969, 107 Am. St. Rep. 749, 67 L.R.A. 969, “All agree that by judicial discretion is never intended the whim or caprice of the magistrate, nor a course of judicial action inconsistent with itself in dealing with cases essentially alike.” “, . . he is not altogether a law unto himself, . . .” “All judicial discretion may thus be considered as exercisable only within the bounds of reason and justice in the broader sense, and to be abused when it plainly overpasses these bounds.”
¶3By setting aside the verdict in this case the trial court was called upon to proceed with cautious deliberation. In the exercise of this discretion the guide lines are cogently expressed in the case of Dashnow v. Myers, 121 Vt. 273, at pages 282 and 283, 155 A.2d 859, in the following language.
“In this, the judgment of the jury as expressed in the verdict is, and should be in most instances, final. Where there is a conflict *499in the evidence, the trial court is not empowered to disturb the result of the jury merely because the conclusion differs with that which the judge might have reached. Yet, in those occasional cases where it is clear the jury has gone astray, by influence of passion or prejudice, or because the jury has taken an obviously mistaken view of the merits of the controversy, it is the duty of the court, upon proper motion, to reject the verdict,”
¶4citing Rule v. Johnson, 104 Vt. 486, 491, 162 Atl. 383; Smith v. Martin, 93 Vt. 111, 122, 106 Atl. 666.
¶5The Dashnow v. Myerscase, supra, confirms the views expressed in the case of Russell v. Pilger, 113 Vt. 537, 37 A.2d 403, wherein at pages 550 and 551 appears the following statement:
“It is the province of the jury to settle questions of fact; and when the evidence is such that different minds would fairly and reasonably come to different conclusions thereon a trial court has no right to disturb the findings of the jury, although its view of the facts might have inclined it to find the other way.”
¶6When the disposition of a discretionary ground of a motion to set aside a verdict depends upon the evidence in the case it is the duty of the trial court to consider the evidence in the view most favorable to the verdict. Russell v. Pilger, supra,page 551; Woodhouse v. Woodhouse, 99 Vt. 91, 155, 130 Atl. 758.
¶7It appears to be the prevailing rule that an appellate court will interfere in cases as the one under consideration with greater reluctance than when a trial court has overruled a motion for a new trial. This rule appears to be one more of admonitory caution to an appellate court, rather than an enlargement of power in the trial court. Strode v. Strode, 194 Ky. 665, 668, 240 S.W. 368, 27 A.L.R. 313.
¶8The evidence presented a clear-cut jury question. The plaintiffs had the burden of proving their case by a preponderance of the evidence. The jury could and did come to the conclusion that the plaintiffs had failed in this respect. This being so the defendants were entitled to the verdict. King v. Skomorock, R.I., 190 A.2d 470; Israeloff v. Whitehall Taxicab Company, R.I., 190 A.2d 588.
¶9After a consideration of the evidence it is my judgment that the trial court was clearly wrong in disturbing the verdict because the evidence was such that reasonable men could come to different con*500elusions thereon. The record fails to disclose, nor has the trial court pointed out, any impropriety in the verdict. No reasonable basis appears in support of the trial court’s action in granting the motion. On this subject see Kansas Pac. R. Co. v. Kunkel, 17 Kan. 145; Strode v. Strode, supra;39 Am Jur. New Trial §§131-134; 66 C.J.S. §70 (b) pages 219-222.
¶10We are here concerned with a claimed abuse of discretion. The trial court had large discretion in acting upon the motion to set aside the verdict, however it was a legal discretion, and not an arbitrary one. When the bounds of legal discretion are invaded then there arises the question of the legal propriety and justice of such action. It is my view that the trial court exceeded its discretionary control over the verdict and abused its judicial discretion in setting aside the verdict.
¶11I would reverse and remand for an appropriate judgment order on the verdict in favor of the defendant.