On Petition for Rehearing.
Ross, C. J. —The appellee has filed a petition for a rehearing, assailing the original opinion, as he claims, because the court has undertaken to consider conflicting evidence and to determine upon which side it preponderates.
We think counsel are mistaken in saying the court has attempted to weigh the evidence. It is firmly settled by a great number of the decisions of this court that it is exclusively within the province of the jury, subject to review by the trial court, to consider all of the evidence relative to a fact, and from such evidence, pro and con, determine whether it preponderates for or against the existence of such fact, and that their decision, if sustained by any evidence, will not be disturbed. This rule is so well and firmly settled by this court that we would not feel like attempting to change it, even were we disposed to doubt its correctness and the necessity for its universal application. What we said in the original opinion, and still adhere to, is that this court will examine the evidence, and if it finds that no evidence was introduced to establish a fact necessary to the appellee’s right to recover, a new trial will be ordered. It is admittedly true that this court indulges every reasonble presumption in favor of the rulings of the lower court, and that when a record comes before this court in ’which rulings of the lower court are called in question, such rulings will be upheld, unless the appellant shows affirmatively on the face of the record that an error has been committed prejudicial to his rights.
*69While this presumption is indulged in favor of the lower court, it may be overcome by the record itself. And although the general verdict of a jury, when questioned in this court, is presumed to rest upon the finding of every fact necessary to the party’s right of recovery, this presumption will not supply the necessity for evidence to sustain every such fact. If we were to adopt counsel’s contention no verdict could be set aside, whether there was evidence to sustain it or not, for their contention is substantially that a jury having determined that a fact or set of facts exist, their finding is conclusive, irrespective of whether or not the evidence even tends to establish such fact or set of facts.
A jury has a right to find that a fact exists, if there is any evidence fairly tending to prove it, and, when so found, their decision will not be disturbed by this court.
But it is for the court and not for the jury to say whether there is any evidence tending to support the finding of the existence of such fact. This is all that this court attempted to do when it said: “We are constrained to say that in several particulars, at least, the evidence is insufficient to sustain the verdict.” True, we might have been more explicit, and our language plainer, had we said that in several particulars, at least, there was no evidence to sustain the verdict. But the language used is, in substance, the same as that of one of the statutory causes for a new trial, viz.: “That the verdict or decision is not sustained by sufficient evidence Section 568, R. S. 1894, fifth clause. From the wording of the statute has probably arisen the statement by the courts when there is a want of evidence tending to prove a fact, that the evidence is insufficient for that purpose.
Counsel seem to think the language used in the original opinion is such that they can not understand its *70meaning; for that reason, we hope we have made ourselves clear to them in what we have just said.
Filed Feb. 6, 1895.Petition overruled.