
    Railroad v. Finney.
    
      (Knoxville.
    
    September 22, 1900.)
    1. Vbbdict. When set aside on the facts.
    
    This Court will not reverse a verdict upon consideration of the facts alone, if there is any material evidence to support it. The trial Judge acts upon a different rule. He should set aside a verdict if satisfied that it is not justified by the facts, but he should not set it aside merely because he, trying the case originally, would have decided it differently from the jury.
    Case .cited: Tate v. Gray, 4 Sneed, 591.
    2. Same. Same. Case irn judgment.
    
    The language of the trial Judge, refusing a new trial, indicates an application of the rule appropriate to his own Court, and not of the rule peculiar to this Court, when he stated that, after excluding from consideration the statements of certain witnesses deemed utterly unreliable, “that it was a close question on the other facts in the case, and the jury having adopted the plaintiff’s theory, under the well-settled rule of law, their verdict should not be disturbed.”
    FROM HAMILTON.
    Appeal in error from Circuit Court of Hamilton County. Eloyd Estile, J.
    Pritchard & Sizer for Railroad.
    W. T. Murray and S. H. Eord for Einney.
   WilKes, J.

Tbis is an action for damages for personal injuries sustained by tbe running of one of defendant railway company’s engines against tbe plaintiff.

■ There was a trial before tbe Circuit Judge and a jury, and a judgment and Verdict for. $500, and tbe railway company bas appealed, and assigned errors.

It is stated in tbe bill of exceptions that “on tbe motion for a new trial defendant by counsel said that two witnesses, John Brakeman and Will Einney, bad appeared before tbe jury in such manner and made such statements that they were not worthy of any credit, whereupon tbe trial Judge said be would attach no weight to . tbe evidence of these witnesses as to the' material facts in tbe case, and on further argument and consideration be stated that it was a close question on tbe other facts in dhe case, and tbe jury having adopted tbe plaintiff’s theory, under tbe well-settled rule of law their verdict should not be disturbed.”

Tbis action and these statements of tbe trial Judge are made the basis of error assigned.

Tbe argument of counsel is that tbe learned trial Judge meant by tbis language to say that he would not disturb tbe verdict, inasmuch as there was some evidence to support it, and that tbe rule referred to by him was tbe rule adopted by tbe Supreme Court, not to disturb a verdict if ' there is any evidence whatever to support it.

We think this is not the proper construction of the language, and was not the meaning of the trial Judge, and that the rule referred to by him was not the rule adopted by this Court in regard to reversals, but the familiar rule that when there is a conflict of evidence, and the question is a close one on the facts, it is the province of the jury to decide the question, and he would not invade that province.

This is the only error assigned, and it is conceded that there is some evidence upon which the verdict can rest, though it is insisted the weight of it is largely against the verdict.

Under this view of the case, we think the assignment not well made. Caruthers’ History of a Lawsuit (Ed. 1860), Sec. 386, p. 252; Tate v. Gray, 4 Sneed, 591.

A verdict of a jury will not be set aside merely because the Court, if trying the question of fact, would have found differently, and the verdict will not be set aside because the trial Judge differs with the jury on the merits of the case, unless the Court is satisfied the finding of the jury is not justified by the evidence. 14 Enc. of Pl. & Pr., 772.

The judgment is affirmed with costs.  