
    Joseph Booth v. M. V. Gudgel.
    Judgment — Verdict not Sustained by the Weight of Evidence — Instructions as to Loss.
    APPEAL FROM FRANKLIN CIRCUIT COURT.
    September 23, 1870.
    
      Lindsey, for appellant.
    
   Opinion of the Court by

Judge Peters :

Although, in our judgment, the verdict of the jury is not sustained by the weight of the evidence, still the preponderance is not so palpably and decidedly against the verdict as to authorize this court to interfere and set it aside. The evidence is somewhat conflicting.

The only instruction given for appellee points out specifically what facts must exist, or in what his delinquency must have consisted, to render appellant responsible for the loss. One or the other of which must have existed, and if the loss resulted from any other cause he was not responsible. This, we think, is a correct exposition of the law.

The instruction asked by appellant and refused by the court, being “No. 3” left out of yiew altogether, or excluded from the consideration of the jury whether the change of position of the team after it was in the boat was made by the direction of the ferryman, as to which there was some proof, and consequently the instruction was properly refused.

Perceiving, therefore, no error available for reversal, the judgment must be affimed.  