86 Miss. 55 | Miss. | 1905
delivered the opinion of the court.
This appeal challenges the correctness of the action of the trial judge in granting a peremptory instruction in favor of appellee at the conclusion of appellant’s testimony. The rule in such case was recently stated by this court as follows: “It is well settled in our state that, where a peremptory instruction is given, the losing party is entitled, upon the review of the action of the court, to have all facts in his favor considered as true. A peremptory instruction is proper only in cases where, with all the facts in evidence taken as true, with every inference from them, they fail to maintain the issue.” McCaughn v. Young, 85 Miss., 277 (s.c., 37 South. Rep., 839). Tested by that rule, the instant case should have been submitted to the jury. If the testimony of the witnesses Patton and Henson as to the vicious and dangerous disposition of the animal and the knowledge of this fact by the manager of the telephone company be true, and if the testimony of the appellant that he was ignorant of this be likewise true, then this evidence was sufficient to sustain a verdict in favor of appellant. The facts being sworn to positively, the jury should have been permitted to pass upon both the credibility of the witnesses and the probability and reasonableness of their story.
Reversed and remanded.