I do not agree with the majority in reversing and dismissing this case. We are all agreed that jury verdicts cannot be based on speculation or conjecture, and the majority in this case states that it was pure speculation, conjecture, and a mere guess.
The appellee testified that she is 33 years old, married and was with her husband and others at the time she drank the bottle of Coca-Cola. She said it had a peculiar taste; she looked into the bottle and saw a bottle top. When she discovered the top in the bottle, she did not drink any more of it. It was eight or ten minutes after she drank the Coca-Cola until she became nauseated and nervous; she was treated by physicians after that, and testified positively that she never did have any trouble with her stomach until she drank this Coca-Cola, and since that time she has had trouble. There is no conjecture about her drinking the Coca-Cola, and no conjecture or speculation about her becoming sick; no conjecture or speculation about the fact that she had never had stomach trouble before, and that she has had it since. It is true the majority may believe that she did not tell the truth, but it is a well established rule of this court that whether she did or not was a question for the jury.
I am at a loss to know what it is claimed that the jury speculated about. Certainly it was not about her drinking the Coca-Cola, and certainly not about whether it made her sick; because the positive testimony establishes these facts.
Dr. E. H. Abington testified that Mrs. Wood came to his office, said she was sick at the stomach; she had been vomiting and wanted some medical attention, and he gave it to her; gave her something to empty her stomach; she seemed to be cramping and griping about the *Page 496 stomach; she was nauseated and told the doctor she had been vomiting before she reached the house; she vomited some after she got there. He said he was not sure whether she had been vomiting or trying to vomit. She stayed at the doctor's between one and two hours. Certainly the majority cannot say that the jury conjectured or speculated about this.
Dr. H. C. Brook, a practicing physician at Conway, said he had been Wood's family physician for nine or ten years; that she came to him and said she had drunk a Coca-Cola and that it had made her sick; she had stopped at Dr. Abington's and he treated her, but she was not getting any better; she was pretty sick, and she continued to be sick some time after that; up to this time she had been in apparently normal health, and after that she had been upset. On cross-examination he testified that it was his idea that it was some peculiar acid, some acute irritation at that time, but it did not get well.
The jury had a right to believe, and evidently did believe, the positive testimony of these witnesses, and I am unable to see how anybody could say that the jury's verdict was based on conjecture. I can understand that the majority might not believe these witnesses and might think that the verdict was contrary to the preponderance of the evidence, but under the law, it is the business of the jury, and not this court, to determine where the preponderance of evidence is.
I think any ordinary person would believe from this testimony that the appellee drank the Coca-Cola and that it made her sick, and they would not have to speculate or conjecture to do that.
We have many times held that the credibility of witnesses and weight to be given to their testimony are questions for the jury. We have, also, held that where there is a conflict in the evidence, it is the province of the jury, and not this court, to determine the weight of the evidence; and even if it appears to us that the verdict is contrary to the preponderance of the testimony, this furnishes no ground for reversal.
"Common experience rather than technical rules should be adopted as the test. Mercantile and industrial *Page 497 life, producing, as they do nearly all transactions of men that come before the courts of law and equity, are essentially practical. That which is the final basis of action, of calculation, reliance, investment, and general confidence in every business enterprise, may safely, in general, be resorted to prove the main fact. The courts need not discredit what the common experience of mankind relies upon. Judge Cooley once said that courts would justly be subject of ridicule if they should deliberately shut their eyes to the sources of information which the rest of the world relies upon." 10 R.C.L. 861, 862.
Article 2, 7, of the Constitution of the State of Arkansas reads as follows: "The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law."
Section 23, Art. 7, of the Constitution of the State reads as follows: "Judges shall not charge juries with regard to matters of fact, but shall declare the law, and in jury trials shall reduce their charge or instructions to writing on the request of either party."
It appears, therefore, from the Constitution, that parties are entitled to a trial by jury, and that it is their province to pass on the facts without any charge from the judge with regard to matters of fact. Of course, it is a matter of fact as to whether appellee drank the Coca-Cola and whether it made her sick, and, in my judgment, these were questions for the jury, and their finding is conclusive here, and the judgment should be affirmed.
Mr. Justice HUMPHREYS agrees with me in the conclusions herein reached. *Page 498