Kilpatrick v. Columbia Bank

57 Jones & S. 144

Opinion

By the Court.—Sedgwick, Oh. J.

In this case, I think the motion for a new' trial, on the ground that the verdict was against the evidence, the defendant having at the trial claimed that the court should direyt a verdict, because the preponderance of evidence was with the defendant, should have been granted. The plaintiffs made out a slight case. Many probabilities, intrinsic in the circumstances, were in favor of defendant. The defendant’s witnesses gave substantial testimony in contradiction of plaintiffs. In rebuttal the plaintiffs called as a witness, a person for whose credibility they vouched by putting him under oath. That witness’s testimony told for the defendant and against the plaintiffs, so clearly and in such substantial respects, that to me it appears certain that the preponderance of evidence was with the defendant. The motion should have been granted.

I think, also, that the verdict should have been directed for defendant, as requested on the trial.

Judgment and order appealed from reversed, and a new trial ordered, with costs to appellant to abide the event.

Freedman and Truax, JJ., concurred.