Blumenthal v. Torini

40 Mo. 159

Opinion

Wagner, Judge,

delivered the opinion of the court.

The only question of law preserved by the record in this case is the refusal of the court below to give the third and fourth instructions asked by the appellant. The instructions are inconsistent with themselves, and both are erroneous ; they are inapplicable to the issue as presented by the petition and the evidence as detailed in the cause.

We cannot enter into an examination of the weight of evidence ; that is peculiarly for the jury. Whether we would have drawn the same inferences, or rendered the same verdict, is not the question. There was conflicting testimony, and in such a case, aside from the impropriety of our interposing, it would be obviously impossible for us to form as correct and intelligent a conclusion as the jury, who have the witnesses before them, and can judge of their credibility by the manner in which they detail their evidence, their apparent candor or attempts at suppression, and general opportunities for knowing what they depose to. There is not an absence of evidence to support the verdict, and unless we knew the credibility to be átfcachod to the respective witnesses, (and so far as the record discloses they are all equally unimpeached,) we should have difficulty in telling on which side the weight preponderates. There is nothing here warranting an interference in this court.

Judgment affirmed.

The other judges concur.