On Petition for a Rehearing.
Per Curiam.Counsel for appellant has filed* a petition for a rehearing, in which he urges that the justice of the cause requires that it should be remanded with instructions to the court below to render judgment for appellant. Section 660, R. S. 1881; 2 Works’ Practice, p. 138.
Filed Nov. 24,1893.The majority of the court is of the opinion that there was some evidence at least in support of the verdict on every material point in issue. The jury were the exclusive judges of the credibility and weight of the evidence, and, therefore, the court would not reverse the judgment of the court below because of the insufficiency of the evidence to sustain the verdict, with instructions to render judgment for appellant.
Counsel for appellee earnestly insist that a rehearing should be granted on the ground that the errors in giving and the refusal to give the instructions, as stated in the original opinion, were harmless.
In this contention, the majority of the court do not agree with counsel. The court is not able to say, in this case, that the record so clearly and affirmatively shows that the verdict is right updn the evidence as to render the errors referred to in the original opinion harmless.
Each of the petitions for a rehearing is therefore overruled.