dissenting. I am unable to concur in the majority opinion upon the question of fact in this case. As shown in the main opinion, the iron cover in question was loose, and the plaintiff stepped on it. Several witnesses testify as to defective conditions surrounding it at the time, which might well count for its being loose; that for three months before, the boards surrounding the hole were rotten; that they would not hold a nail; that there was no iron rim for the cover to rest upon. If this testimony were true, the finding of the jury is absolutely justified.
I am well aware that in some of the Appellate Courts in this State there is a recent tendency of decision which justifies the' main opinion—a tendency on the part of the upper court not to review for error, but, as it seems to me, to supervise the trial of the court below, and often, in a way, belittle the effect of the verdict of the jury. Such a tendency, in my opinion, violates the clear provisions of the established law, and reflects upon the wisest establishment in our judicial system. Under the law it is assumed, and must be assumed, so long as our present system is maintained, that the jury is intelligent, fair and honest; that the result of its collective experience focused upon matters within its province, is better than that of the trial judge and of much greater value than the judgment of the Appellate Court.
In the case under consideration, to discredit the verdict is, in effect, to pass upon the credibility of the witnesses. To disregard the testimony of three or four seemingly disinterested witnesses, in favor of seven or eight opposing them, and to set aside the solemn verdict of the jury, because of giving more weight and credit to the seven or eight opposing witnesses—a verdict sanctioned by the judgment of the trial judge, who also saw and heard the witnesses—is, in my opinion, a dangerous departure from the established rules • of law.
Appellate courts are not organized to say whether the judgment of the court below, in a suit at law, is just; but only to ascertain whether prejudicial error has been committed.
I am unable, therefore, to concur in the majority opinion.