Dissenting Opinion of
Galbraith, J.I respectfully dissent. To.set aside the verdict of the jury on the ground that it is not supported by the evidence, is, it seems to me, to Hy in the face of the Seventh Amendment to the Constitution of the Hnited States by re-examining a fact or facts tried by a jury in a manner “otherwise than according to the rules of the common law.” In order that the majority of this court may reach the conclusion that the evidence does not support the verdict of the jury it was necessary to re-examine the facts submitted to the jury. I do not understand that this- can be done. The finding of the jury on the facts is absolutely binding on this court. If there had been no evidence for the plaintiff it would have been the duty of the trial judge to have taken the case from the jury and to have directed a verdict but when the judge determined that there was evidence to go to the jury then the jury became the exclusivo judges of its weight and that finding is only subject to review in the manner pro*680vided by the rules of the common law. There was no exception taken to the ruling of the trial judge refusing to direct the verdict. This court can set aside the verdict of a jury for errors of law only.
Mr. .Justice Gray in delivering the opinion of the Supreme Court of the United States in Capital Traction Company v. Hof, 174 U. S. 1, 13, said:. “It must therefore he taken as established, by virtue of the Seventh Amendment of the Constitution, that either party to an action at law (as distinguished from suits in equity or in admiralty) in a court of the United States,' when the value in controversy exceeds twenty dollar's, has the right to a trial by jury; that when a trial by jury has been had in an action at law, in a court either of the United States or of a State, the facts there tried and decided cannot be re-examined in any court of the United States; otherwise tiran according to the rules of the common law of England; that by the rules of that law, no other mode of re-examination is allowed than npon a new trial, either granted by the court in which the fipst trial w7as had or to which the record was returnable or ordered by an appellate court for errors of law; and therefore that, unless a new trial has been granted in one of those two ways, facts once tried by a jury cannot he tried anew, by a jury or otherwise, in any co-urt of the United States.”
It does not seem necessary for me to express an opinion on the other questions raised by the exceptions since- the judgment of the majority will remand the cause for a .new trial.