The plaintiff in error, F.B. Choate, filed a motion for rehearing in this cause, supported by a clear and forcible argument in which he insists that this court erred in holding that the Court of Civil Appeals held correctly when it directed the trial court upon another trial under the same evidence to instruct the jury to find for the defendant.
In our former opinion we held that under the most favorable view of the evidence that could be taken for the plaintiff, there was no proof of negligence on the part of the defendant, and therefore there was nothing for a jury to decide upon. In Lee v. International Great Northern Railway Co., 89 Tex. 503 [89 Tex. 503] (36 S.W. Rep., 63), upon a similar question, this court said: "Negligence, whether by the plaintiff or defendant, is generally a question of fact and becomes a question of law to be decided by the court only when the act done is in violation of some law, or when the facts are undisputed and admit of but one inference regarding the care of the party in doing the act in question. In other words, to authorize the court to take the question from the jury, the evidence must be of such a character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it." (Railway v. Cain,69 Md. 11; 13 Atl. Rep. 387; Railway v. Griffith, 16 Sup.Ct. Rep., 105; Railway v. Ives, 144 U.S. 417; Railway v. Gasscamp,69 Tex. 547; Chatham v. Jones, 69 Tex. 746 [69 Tex. 746].) We think this the correct rule, and that the court is not justified in taking from the jury a question of fact except in case the evidence is such that there is no issue made for the jury to determine.
A different rule applies to the granting of new trials by the trial courts and courts of civil appeals. Although there may be sufficient evidence in a case to require the court to submit it to the jury, yet if the verdict rendered thereon is against the preponderance of the evidence to that degree which shows that manifest injustice has been done, the trial court may and should grant a new trial. The judge should not invade the province of the jury and take from it the decision of a question which properly belongs to it; neither should he abdicate the functions of his office and permit the prerogatives of the jury to be perverted to the accomplishment of wrong.
Upon a careful re-examination of this case, we have concluded that there was error in the former judgment of this court, in so far as we held that there was no evidence upon which to submit the issue of negligence *Page 89 to a jury. We think that the evidence is not such as to preclude a difference of opinion upon the question of negligence on the part of the defendant, and that the Court of Civil Appeals erred in the direction that it gave to the trial court as above stated.
The motion for rehearing in this case is, therefore, granted, and it is ordered that the judgment of this court heretofore rendered on the eleventh day of June, 1896, be set aside and held for nought; that this cause be remanded to the district court for trial in accordance with this opinion, and that the plaintiff in error recover of the defendant in error all costs in this court, and that defendant in error recover of the plaintiff in error the costs in the Court of Civil Appeals.
Reversed and remanded.
Delivered October 19, 1896.