McNally v. O'Brien

88 Ill. 237

• Court: Illinois Supreme Court
• Decided: January 15, 1878
• Status: Published

Opinion

Mr. Justice Scott

delivered the opinion of the Court:

Whether the fence in controversy was a division fence, and was so treated by the parties, was a question of fact for the jury, and in view of the character of the evidence given, we must regard the verdict as conclusive. The testimony is conflicting, but there is evidence that would justify the finding that it was treated as a division fence. There is some evidence that plaintiff, at the request of defendant, repaired the fence as a division fence, and that he had, from time to time, placed boards upon it, to near or quite half the amount used in making it. What weight was to be given to such testimony was, of course, for the jury, and no sufficient reason is perceived for disturbing their conclusion.

It must be conceded, some of the instructions given for plaintiff are not entirely accurate, but, on carefully considering the evidence, and in view of the amount of the verdict, we can not believe the jury were misled as to the true rule for measuring the damages. The verdict is small, and no sufficient reason appears for setting it aside.

The judgment will be affirmed.

Judgment affirmed.