Smith v. Tombigbee & N. Ry. Co.

• Decision Date: 21 July 1904
• Citation: 141 Ala. 332,37 So. 389
• Court: Alabama Supreme Court
• Parties: SMITH v. TOMBIGBEE & N. RY. CO.

37 So. 389

141 Ala. 332

SMITH v. TOMBIGBEE & N. RY. CO.

Supreme Court of Alabama

July 21, 1904

Appeal from Circuit Court, Mobile County; Wm. S. Anderson, Judge.

Action by Joseph B. Smith against the Tombigbee & Northern Railway Company. There was a verdict for plaintiff, and from an order granting a new trial he appeals. Affirmed.

Gregory L. & H. T. Smith, for appellant.

E. L Russell and Saffold Berney, for appellee.

TYSON J.

The appeal in this case is from a judgment granting a new trial. The motion assigns a number of grounds. The record does not disclose, if that were important, upon what ground the court granted it. If it can be affirmed that it was not improperly granted upon any ground, the judgment cannot be reversed. The third assignment is that "the verdict is contrary to the evidence," and the fourth is that "the verdict is contrary to the preponderance of the evidence." The case was tried on the fourth and fifth counts of the complaint as amended and two pleas, numbered 1 and 3, filed thereto. Plea numbered 1 is the general issue. Plea numbered 3 is special and sets up accord and satisfaction of plaintiff's demand before the institution of the action. Plaintiff's insistence is that the counts upon which the case was tried sufficiently aver wanton or intentional injury. The trial court seems to have taken this view of them. Whether they do or do not is not necessary to be here determined. Assuming the correctness of this insistence, the testimony upon the issue presented by them was in conflict, and the determination of that issue was for the jury. And so, too the determination of the issue presented by defendant's special plea of accord and satisfaction was for the jury. But it does not follow from this that the court's action in granting the motion must necessarily be reversed. Nor did we so hold in Louisville & N. R. R. Co. v. Sullivan, 126 Ala. 95, 102, 27 So. 760, 761, as appellant's counsel seems to suppose. We simply pretermitted a decision of the correctness of the court's action in that case as to the grounds of the motion, "that the verdict was contrary to the evidence" and "that it was contrary to the law and evidence."

The rule, as we understand it, applicable here, is that "the latitude allowed to the trial court's discretion in passing on motions for new trial is such that this court will not reverse a judgment granting the motion unless the evidence plainly and palpably supports the verdict. Cobb v Malone, 92 Ala. 630, 9 So. 738;" Merrill v....