This case was before this court upon a former appeal and is reported in 90 Texas Reports, beginning on page 82. The case presented by the former application and that by the present one are almost the same; and yet there is a material difference between them. On the former appeal the Court of Civil Appeals held that there was no evidence to warrant a verdict for the appellee, the plaintiff in the District Court, and reversed the judgment and remanded the cause with an instruction to direct a verdict for the defendant in the event the evidence should be the same upon another trial. The appellee applied to this court for a writ of error and in order to give us jurisdiction alleged in its petition that the decision of the Court of Civil Appeals "practically settled the case." We concurred in this view and therefore entertained jurisdiction and granted the writ. In passing upon the case we were in the first instance of the opinion that the decision of the Court of Civil Appeals was correct, and in compliance with the statute we accordingly rendered judgment against the plaintiff in error. But upon a motion for a rehearing we concluded that there was some evidence which tended to show negligence on part of the plaintiff in error, the defendant in the trial court, and that that court erred in holding to the contrary and in instructing the trial court to direct a verdict for the defendant in case the evidence upon another trial should be the same. But we also held, that the determination of the Court of Civil Appeals that the verdict should be set aside was conclusive, and we therefore affirmed their judgment in so far as it reversed the judgment of the trial court and remanded the cause, but reversed and set it aside in so far as it ordered a verdict to be instructed. That in this action we neither exceeded our powers nor entrenched upon the jurisdiction of the Court of Civil Appeals, there is no doubt. "Whether there be any evidence or not is a question for the judge; whether it is sufficient evidence is a question for the jury." 1 Greenleaf, Ev., sec. 491. So that it is elementary that whether there be any evidence or not to support an issue is a question of law and not of fact; and it follows that the decision of the Court of Civil Appeals upon such a question is subject to review by this court.
Nor do we concur in the opinion that the Court of Civil Appeals have the right to conclusively determine the facts of any case. Our bill of rights contains the emphatic declaration, that "the right of trial by jury shall remain inviolate." Const., art. 1, sec. 15. It is the province of the jury to determine questions of fact; but it is in the power of the trial judge to set aside the finding and to award a new trial. The Court of Civil Appeals has the same power upon appeal. But clearly the trial *Page 410 court cannot set aside the verdict of the jury and substitute its finding instead of the finding of a jury and render judgment accordingly. To say that the Court of Civil Appeals may do so when there is any conflict in the evidence, is to concede to that court a power over the facts greater than that possessed by the judge who heard the evidence, who had the witnesses before him, and had the opportunity of judging of their credibility by their appearance and manner of testifying. It is a grave misapprehension to suppose that either the recent amendments to the judiciary article of the Constitution or the statutes passed in pursuance thereof were intended to confer such power. The purpose of that provision in amended section 6 of article 5 of the Constitution, which reads, "that the decision of said courts shall be conclusive upon all questions of fact brought before them on appeal or error," was not to enlarge their power over questions of fact, but to restrict in express terms the jurisdiction of the Supreme Court and to confine it to questions of law. The Supreme Court before the amendments in question had jurisdiction on appeal or a writ of error over the facts of a case, but to this extent only, — that if the evidence was conflicting upon any material issue, it could sustain the verdict and affirm the judgment; or if in their opinion the verdict was against such a preponderance of the evidence as to justify such action, it could set it aside and remand the cause for a new trial. It had no power to make an original final determination of a question of fact. It might approve the finding of the jury and thus make it conclusive. This same power is conferred by the amendments upon the Courts of Civil Appeals, and their action upon such questions is made final and not subject to be reviewed by this court. The statute which provides, that "the judgment of the Courts of Civil Appeals shall be conclusive in all cases upon the facts of the case" (Rev. Stats., art. 996), merely recognizes the rule of the fundamental law as prescribed in the amendments to the Constitution, and in that particular the Legislature could have done no more. It is contrary to the genius of our institutions as well as to the letter and spirit of every constitution ever adopted in this State, to suppose that it was ever intended to substitute the judgment of the appellate courts upon the facts of a case in place of that of the jury and to make the determination of these courts final.
But the difference between the judgment of the Court of Civil Appeals upon the former writ of error and that to which a writ of error is here sought, is that the latter does not direct that a verdict be instructed. It reverses the judgment of the trial court and remands the cause, which it was within the power of the Court of Civil Appeals to do, and which it was their duty to do, provided they were of opinion that the verdict was against such a preponderance of the evidence as to make that action proper. The cause having been remanded without instructions, upon another trial the jury may upon the same evidence render a verdict either for the plaintiff or the defendant.
Therefore the decision of the Court of Civil Appeals does not practically *Page 411 settle the case, and we are without jurisdiction to grant a writ of error to their judgment. The application is accordingly dismissed.
Application dismissed.