(dissenting). There was a collision of vehicles, resulting in some damage, which collision was either a pure accident or was the fault of one or other or both of the drivers. To determine just what' took place, those who occupied the vehicles were competent witnesses, and no reason appears for not having called them as witnesses. Instead of this, witnesses were permitted to testify what the occupants of the vehicles, or one of them, including the driver of one of them, said with respect to the matter.
*313It is elementary that this was hearsay testimony, and not admissible. It goes without saying that it was prejudicial to one of the parties.
Assuming, as I do, that it is the province of a jury called to determine an issue of fact to weigh the testimony, determine the credibility of witnesses, and in other respects to apply to the testimony tests to determine where the truth lies, I think it is not the province of this court, in a case where prejudicial, inadmissible testimony has been admitted, to determine that, independent of that testimony, “plaintiff had maintained his theory of the case by what appears to us. to be a clear preponderance of the evidence.”
Whether evidence preponderates must, in my opinion, always be a question for the jury.
The judgment should be reversed and a new trial ordered.