Williams Yellow Pine Co. v. Henley

• Decision Date: 06 January 1930
• Docket Number: 28254
• Citation: 155 Miss. 893,125 So. 552
• Court: Mississippi Supreme Court
• Parties: WILLIAMS YELLOW PINE CO. v. HENLEY

125 So. 552

155 Miss. 893

WILLIAMS YELLOW PINE CO. v. HENLEY

No. 28254

Supreme Court of Mississippi

January 6, 1930

Division B

1 JURY. Appellate court may review verdict only where it is without support of competent evidence, where it is without support of reasonably believable proof, or where verdict is against overwhelming weight of evidence (Constitution 1890 section 31).

Appellate court may review jury's verdict and reverse case only (1) where verdict is without support of any competent evidence (2) where verdict is without support of any reasonably believable proof, and (3) where verdict is against overwhelming weight of evidence, since Constitution 1890, section 31, guarantees trial by jury, and it cannot be denied indirectly or in part.

2. APPEAL AND ERROR. Partiality on part of jury must not be assumed or adjudged except for strong reasons fairly manifest upon record.

Partiality on part of jury is not to be assumed, nor is it to be adjudged except for strong reasons manifestly upon record.

3. TRIAL. It is not improper in instruction to assume fact which is proved in evidence.

It is not improper in an instruction to assume a fact which is proved in evidence.

HON. J. Q. LANGSTON, Judge.

APPEAL from circuit court of Pearl River county HON. J. Q. LANGSTON, Judge.

Action by Herman D. Henley against the Williams Yellow Pine Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

J. C. Shivers and Jno. C. Street, both of Poplarville, and W. J. Gex, of Bay St. Louis, for appellant.

Where the jury's verdict is against the overwhelming weight of the evidence, and where by reading the record this court can tell that clearly an injustice has been done, then it will not hesitate in the interest of justice to set aside such a verdict.

It is error for the trial court to grant instructions on the weight of evidence.

Hathorn & Williams, of Poplarville, for appellee.

In cases where the evidence is conflicting, questions of the veracity and credibility of the witnesses and the weight to be given to the testimony of witnesses are for the jury alone, and the verdict of the jury on such conflicting evidence will not be disturbed.

Hemming v. Rawlings, 144 Miss. 643, 110 So. 118; G. M. & N. R. Co. v. Seymore, 148 Miss. 456, 114 So. 35.

All instructions given in a case must be read together as one instruction, and when that is done, if they are found to embody applicable principles of law, and are complete, neither party has ground of complaint, even though taken separately some of the instructions may be incomplete.

Cranford v. Maryland Casualty Co., 115 So. 586; Pannel v. Glidweil, 146 Miss. 565, 111 So. 571; Hemming v. Rawlings, 110 So. 118: Railroad Company v. Lott, 80 So. 277; Life Ins. Co. v. Vaughan, 88 So. 11; Lumber Co. v. Hankins, 105 So. 858; Lamar Hardwood Co. v. Case, 107 So. 868; Gibson v. Wineman, 106 So. 826; Railroad Company v. Fountain, 111 So. 153; Brister v. Dunaway, 115 So. 36.

Argued orally by John C. Street, for appellant, and by E. B. Williams, for appellees.

OPINION

Griffith, J.

Alleging that appellant had negligently constructed, in a dangerous manner, a logging railroad across an important state highway, and that in consequence thereof appellee, while traveling as a passenger in an automobile, was seriously injured at said crossing, appellee sued appellant and recovered judgment. Appellant assigns as his main point of error that the verdict is contrary to the overwhelming weight of the evidence.

The allegations of appellee, in respect to the negligent and dangerous manner in which said railroad was constructed in and across said highway, were sustained in every essential detail by an employee of the state highway department. The particular employment and daily business of this employee at the time of the injury was that of the care and maintenance of this highway, and hence it would reasonably be supposed that he would have particular and dependable knowledge in this matter. This witness was corroborated substantially by four other witnesses, and none of these witnesses are in any way impeached. The rulings of the trial judge on the various objections, touching offered evidence, disclose a discrimination and caution in that respect highly creditable in comparison with the average record in such cases. These rulings were in general all that appellant could reasonably have asked, and the only one complained of was not substantially erroneous. It is not a case, therefore, in which the force of the verdict is weakened by reason of unguarded rulings by the trial court--rulings by which, under one guise or another, matters wrongfully prejudicial and in contravention of the true spirit and purpose of the rules of evidence were admitted, as is too often the case, only by the letter and barely within the letter of those rules.

But the defense made was a strong one and is impressive, not only in the greater number of witnesses produced, but in the high and indisputably reliable character of those witnesses. Upon these grounds appellant vigorously and feelingly complains of the verdict and urges that no less than plain justice requires a reversal of that verdict at our hands.

It is apparent from the earnestness with which the subject is so often pressed upon this court, that a strong conviction yet exists among many of the bar that this court of appeals ought to undertake the review of every verdict which may appear to the court as one different from what the members of the court would have returned had they been on the jury. It seems to be sometimes supposed that the rule that we will not reverse a verdict, when it has reasonable and unimpeached support in the testimony, is a mere rule of adjudication promulgated and maintained by the court as one simply of practical consideration and which we have the power to vary or pretermit in a given case. While upon considerations of practical policy and sound procedure the rule may be well justified for the reasons stated in Brown v. State, 153 Miss. 737, 121 So. 297, and for the further reason that we have here only the typewritten record and have none of the manifest advantages incident to an observation of the several witnesses and their demeanor on the stand, yet the aforementioned considerations are not the final foundation upon which the rule stands, and immovably so, in consequence of which we could not vary or pretermit the rule, even if we would. The persistency of the conviction above mentioned and its evident sincerity would seem to make it needful that, in this matter, we should take occasion to recur, by way of a brief review, to original and fundamental principles.

The right of trial by jury in common-law cases is a right granted and guaranteed by the Constitution. It cannot be denied directly, and for that reason cannot be denied indirectly. And neither can it be denied in part, for if so it could with equal authority be denied in toto; and to say that it cannot be denied in part is the same as to say that it cannot be abridged. If this court should assume to consider that the verdict of a jury in a common-law case is no more than advisory to the trial court or to this...