Peoples Railway Co. v. Brown

OPINION

By THE COURT

The above entitled cause is now being determined on the application of defendant in error for a rehearing. The grounds for ■rehearing are set forth under ttose separate headings as follows:

1. The court erred in reversing the judgment of the lower court on the question of the weight of the evidence because the court did not have before it all of the evidence that was presented to the trial court at the time the cause was heard before the jury;

2. That the ruling of the court does not go to the weight of the evidence, but interposes the supposition of the court that the jury did not give the evidence the necessary consideration;

3. That the court acted upon the evidence, not by reason of its weight, but upon the .credibility of the individual witnesses.

The appearance, demeanor, etc., are always elements which the jury have a right to take into consideration in determining credibility.

It is for this reason that reviewing courts are loath to disturb a verdict, and under legislative mandate can not reverse on this ground except where the verdict and judgment are against the manifest weight of the evidence. In the instant case w-e do not understand that the three neighbor ladies were introduced in evidence and of course they could not be attached to a bill of exceptions. In rendering the opinion we had in mind that they were present in court and that the jury saw them.

Notwithstanding this.it was our conclusion that the verdict was against the manifest weight of the evidence and for the reasons therein stated.

The second ground of complaint raises no new question, but rather expresses, a contrary view on the part of counsel.

- Referring to complaint No. 3 would say that the court considered the entire record, which means the testimony of all witnesses. When a reviewing court reverses on the weight • of the evidence, the credibility of witnesses on one side or the other is under consideration, even though the opinion may not so express in words.

The motion for rehearing will be overruled.

KUNKLE, PJ, BARNES and HORNBECK, JJ, concur.