The majority correctly say that there can be no recovery it' the negligence of the deceased was equal to or greater than that of the employees of the railroad company. The majority in the last analysis of the testimony conclude that intestate's negligence equaled or exceeded that of appellants, and that the judgment should be reversed and the cause dismissed. This was not the conclusion of the jury. The jury analyzed the evidence and concluded by their verdict that appellants' negligence was greater than that of deceased. There is substantial evidence in the record tending to support the finding of the jury, and the verdict should not be stricken down by the court unless there is evidence showing that the verdict was the' result of passion or prejudice. There is nothing in this record showing that the verdict was based upon passion or prejudice. The jury are better judges of the weight and effect of the testimony of witnesses than the court can possibly be. In fact, the Constitution of this state makes the jury *Page 426 the exclusive trier of the facts. No authority is conferred upon the Supreme Court to try the facts de novo in a suit at law. In chancery suits, the court may do so, but not in suits at law. In my opinion, the majority of the court in striking down the verdict and dismissing the suit invaded the exclusive province of the jury.
In his dissenting opinion Mr. Justice Smith says that the majority erred in striking down the verdict and dismissing the suit, and that instead of doing so the court should have diminished the verdict in proportion to the deceased's contributory negligence under 1213 of Pope's Digest. In his dissent he states that the jury did not take the fact of deceased's contributory negligence into account. I am at a loss to understand why he concludes that the jury did not take deceased's contributory negligence into account in arriving at their verdict. Whatever contributory negligence deceased was guilty of was before the jury, and the presumption necessarily is that they took it into consideration in arriving at their verdict. It was the duty of the jury to take any contributory negligence on the part of the deceased into consideration, and I cannot agree with my learned associate that they did not take it into consideration. I not only dissent from the majority opinion, but dissent from that portion of my associate's dissenting opinion which says that the court should have materially reduced the verdict instead of striking it entirely down. There is nothing in this record showing that a verdict for $20,000 is excessive, even though the deceased was partially to blame for the collision.
For the reason given, I most respectfully dissent from the majority opinion in this case. *Page 427