McDonnell v. St. Louis Southwestern Railway Co.

135 S.W. 925, 98 Ark. 334, 1911 Ark. LEXIS 154

Opinion

Wood, J.,

(after sating the facts). It is reversible error for the trial court to direct a verdict for one part}7 where there is any substantial evidence to warrant a verdict for the other parry. The trial court can not take from the jury its prerogative to determine disputed questions of fact. St. Louis, I. M. & S. Ry. Co. v. Petty, 63 Ark. 94; Wallis v. St. Louis, I. M. & S. Ry. Co., 77 Ark. 536; State v. Caldwell, 70 Ark. 74; Hutchinson v. Gorman, 71 Ark. 303; LaFayette v. Merchants’ Bank, 73 Ark. 361; Neal v. St. Louis, I. M. & S. Ry. Co., 71 Ark. 446; Crawford v. Sawyer & Austin Lbr. Co., 91 Ark. 337.

But that is a different question from the one under consideration. It is not invading the province of the jury for the trial judge to set aside its verdict where there is a conflict in the evidence. On the contrary, it is the duty of the trial court to set aside a verdict that it believes to be against the clear preponderance of the evidence. But it should not, and the presumption is that it will not, set aside a verdict unless it is against the preponderance of evidence. This court will not reverse the ruling of the lower court in setting aside a verdict where there is substantial conflict in the evidence upon which the verdict was rendered, but will leave the trial court to determine the question of preponderance. Taylor v. Grant Lumber Co., 94 Ark. 566; Blackwood v. Eads, ante p. 304.

There was a conflict in the evidence in the present case, and the above cases rule this. The judgment of the circuit court setting aside the verdict is affirmed, and judgment absolute is rendered here in favor of appellee dismissing the cause and for costs.