Stevenson v. Levinson

49 S.E. 974, 103 Va. 591, 1905 Va. LEXIS 30

• Court: Supreme Court of Virginia
• Decided: March 9, 1905
• Status: Published

Opinion

Keith, P.,

delivered the opinion of the court.

Stevenson brought suit in the Circuit Court of the city of Newport News to recover damages for an injury received by him, due,, as he alleges, to the negligence of Max Levinson. After the evidence was introduced, the court gave certain instructions, and the ease was submitted to the jury, which found a verdict in favor of Stevenson for $650.00. Thereupon the defendant moved the court to set aside the verdict as being contrary to the law and the evidence, and because of misdirection on the part of the court.

The verdict was set aside, and a new trial awarded, to which action of the court the plaintiff excepted, and made the evidence part of the record by a bill of exception. There was, however, no exception to the instructions given and refused by the court.

At a subsequent term the case was submitted to a jury, and the plaintiff not introducing any testimony, a verdict was found for the defendant, upon which the court entered judgment, and the case is now before us for review upon the bill of exceptions taken at the first trial to the action of the court setting aside the verdict.

One of the grounds upon which the court was asked to set aside that verdict was, that it had misdirected the jury. As the instructions given are not before us, we cannot say that the court erred in setting aside the verdict upon this ground. The presumption is in favor of the propriety of the court’s action.

“The judgment of a court of competent jurisdiction is always presumed to be right until the contrary is shown, and a party in an appellate court, alleging error in the court below,- must-show it in the regular way, or the presumption in favor of its correctness must prevail. Burks, J., in Harman v. Lynchburg, 33 Gratt. 43; Dove v. Com’th, 82 Va. 305; Riely, J., in Shipman v. Fletcher, 91 Va. 481.

In Rocky Mt. Loan & Tr. Co. v. Price, ante p. 298; 49 S. E. 43, it appears that “one of the grounds for setting the verdict-aside was misdirection of the jury; and the instructions1 given* are not in the record. This court [said Judge Harrison] cannot, - in the absence of the instructions, assume that they were freefrom objection, or pass at all upon that ground for setting theverdict aside.”

We are bound down, therefore, to the conclusion that the Circuit Court committed no error in setting aside the verdict of the jury.

Upon the second trial, no evidence was introduced by the plaintiff and the verdict of the jury was for the defendant. In-this, of course, there was no error.

Upon the whole case the judgment is affirmed.

Affirmed.