mms v. cmcsco, M. s sr. 1>. nr. G0. 19
was enough of it to forbid me to set aside the verdict on that ground.
In regard to the second ground, I think the evidence was very strong,
and very little to contradict it. It would serve no useful purpose here
to go over it, as I recollect it; and my impression is clear, full, and
strong now as it was then that the contributory negligence on the part
of those in charge of the sleigh was fully established; that with any
care,-1 will not say reasonable care, but with any care which a pru-
dent person would have practiced in crossing the railroad track at that
time and place,—no collision would have happened. For this reason
I am of the opinion that a new trial should be granted. ·
It is objected by counsel for plaintiff that this motion can only be
heard upon a case settled, or stated according to the state practice.
That rule, however, is established as a means of preparing for a re-
view of the action of the trial court on the motion in some appellate
court. In the courts of the United States no writ of error lies to the
action of a court in granting or overruling a motion for a new trial.
Such a statement is therefore useless. Mr. Heard objects to this mo-
tion being heard upon an affidavit upon the part of defendant setting
out the evidence. I think this wholly immaterial, and have not read
the amdavit, and do not need anything to remind me of what took
place at the trial.
The counsel for plaintiii objects to a hearing of the motion at Wash· .
ington city, and says while he files a brief he does not waive the ob-
jection. I do not deem it important where the argument of the case
is heard. The eiiect of it upon the mind of the judge is not likely
to be modined by that circumstance. But I do agree that I have
no right, sitting here in Washington, to render a judgment setting
aside the one already entered in this case. This has been often done
by consent and agreement of counsel; and without such agreement I
think my order made here would be of no force. But I see nothing to
hinder the district judge or the circuit judge, or both, sitting in that
court from adopting my views, if they believe them to be correct; or
with the aid of these views hearing the case on the motion, and mak-
ing such order there in term·time as they think right to make. If none
of these methods can be adopted, the motion for a new trial can be A
continued from time to time until I can attend the court and make
the necessary order. I return the papers in the case, with this opin-
ion, to the office of the clerk of the circuit court.