Dissenting.
I hesitate to file an opinion in disagreement ivith a major portion of the court, but I am constrained to dissent in this case because, *94as I view it, the questions for determination were questions of fact, and, considered as such, they are not unusually intricate or involved.
The jury found for the plaintiff. They must have agreed that plaintiff was not chargeable with contributory negligence.
The sole issue, therefore, was that of negligence on defendant’s part.
On this issue there is conflicting evidence, hence, in determining the point, the jury were to decide on which side lay a fair preponderance of the evidence, which to them seemed to have probative value.
When the jury is furnished full narration of the acts of defendant, and description in detail of the physical features of the place where the accident occurred, together with the attending circumstances, it is for them to settle the issue of defendant’s negligence.
After verdict, not predicated on fraud, manifest error, delinquency, sympathy, bias, prejudice, or any other false notion that renders reversal necessary, it is not for this court to set aside the verdict because a majority feel they would have arrived at the contrary conclusion if they had been the jury. Knight v. Railroad Co., 56 Me., 245.
“We cannot substitute our own impressions for any findings which the jury were authorized to make.” Coombs v. King, 107 Me., 380 ; Daughraty v. Tebbetts, 122 Me., 400.
It is also elementary that the jury, and not the court, is to pass upon the credibility of witnesses.
Further, it can not be successfully controverted that as to the condition of a highway at a given time of year, men of the vicinity, otherwise qualified for jury duty, are the finders of fact.
Nor is it probable that a present day jury is not competent to decide what an ordinarily intelligent and admittedly experienced driver of a Ford car must foresee would be the course of his car, when all conditions of roadway and speed are set before them.
The case at bar is not one of a class wherein the corrective power of the court is to be more than ordinarily exercised, typified by cases, collected in Lawrence, Maine Digest, “Evidence,” 161.
Before being set aside the verdict in a case such as we have be*95fore us must be shown to be clearly wrong. Weeks v. Parsonsfield, 65 Me., 286.
It seems to me that in arriving at their conclusion my brethren have overlooked evidence that is uncontradicted; evidence that points unwaveringly to negligence of the defendant.
The jury knew that to a man of ordinary intelligence a thick growth of .large pine standing on the southerly margin of a highway that runs eastward, and extending for rods along the way, on the thirty-first of January may be skirted at its foot by ice extending across the roadway; that defendant ran her car for. 150 feet on this shaded roadway before reaching plaintiff.
They heard her story and it is not for the Appellate Court to •say they must accept as truth all that she stated. They also heard the recital of witnesses as to what the defendant said of her acts and the performance of her car at the time of the accident.
To reject as incredible portions of her testimony, if they did, was within their rights. The opinion presents that defendant’s car “slid down” on plaintiff, as though he were below it, on descending ground, but the testimony before the jury was that the roa"d by the spot of the injury was “practically level” ; and the slope of the roadway from its right side as defendant travelled was not more than six inches in twenty-two feet, not more than produced by ordinary crowning under good construction, and defendant testified that her car “slid forward a little.”
The opinion states, “there was for a little distance a thin coating of ice and snow.” But the jury heard a witness state the ice extended “about fifty feet from the western edge of the woods,” and it is probable they were not mystified by that language.
I can not concur in the taking from the jury the determination of what occurred or in rejecting their finding of absence of the •care that should be exercised under circumstances ordinarily encountered every day on a country road, or to be confronted on any winter day.
Sturgis, J. Also Dissents.