65 Ind. 73 | Ind. | 1878
This was an action by the appellant, as plaintiff, against the appellee, as 'defendant, upon a written agreement between the parties, of which the following is a copy:
“ It is hereby understood between S. C. Evans, agent*74 Ft. "W., J. & S. R. R. Co., and Henry Husselman, that he gives the right of way through his land, for' his subscription $50, and stock in road $450=$500.00, and is to get out what ties he can at 25 cts. on track, and to board, at $3.50 per week, hands, and to let them get out what ties he can spare on his land besides at 5 cts. each.
(Signed,) “ S. C. Evans, Agent of R. R. Co.,
his
“Henry' Husselman.”
mark.
In its complaint, the appellant alleged, in substance, that' the appellee, on the — day of-, 1869, entered into the agreement, above set out, with the appellant, a copy of which was filed with and made part of the complaint, whereby, in consideration that the appellant should permanently locate and construct its railroad upon the line at that time surveyed across and over the east half of the south-east quarter of section 8, and the west half of the south-west quarter of section 9, all in township 34 north, of range 13 east, in DeKalb county, Indiana, then and still owned by the appellee, and release him from paying, a subscription of fifty dollars to the'capital stock of the appellant, and pay him four hundred and fifty dollars, at its par value, in its capital stock, the appellee would sell and convey to the appellant the right of way for 100 feet in width, to be 50 feet ^n width on each side of the centre line of said railroad, as it was then and since located over said premises, and would within a reasonable time thereafter, upon the release of said subscription and payment of said stock, execute to the appellant a good and sufficient deed thereof; that, in pursuance of said agreement, the appellant took possession of said premises, and erected thereon lasting and valuable improvements, in this, that it constructed its railroad on said strip of land, and was then operating the same ; that the appellant can-celled said stock subscription and tendered to the appellee
Subsequently, the appellant filed a second paragraph, which is substantially the same, in its averments, as its original complaint, the substance of which we have given.
The appellee answered by a general denial; and, in a second paragraph, which was verified by his oath, he alleged that the written agreement in suit was never executed by him.
The issues joined were tried by a jury, and a general-verdict was returned for the appellee. With their general verdict, the jury also returned their special findings on pai-ticular questions of fact submitted to them by the parties under the direction of the court; but, as there was no motion for judgment on these special findings, we need not set them out in this opinion.
The appellant’s motion for a new trial was overruled by the court, and to this ruling it excepted; and judgment was rendered on the general verdict, in favor of the appellee and against the appellant, for the costs of suit.
The only error assigned by the appellant in this court is the decision of the circuit court, in overruling its motion for a new tidal. The causes for such new trial, assigned by the appellant in its motion therefor, were, that the verdict was not sustained by sufficient evidence, and that it was contrary to law.
“We do not ignore the rule so repeatedly laid down by this court, that we will not reverse a cause upon the mere ■weight of evidence. The general rule is that if there is evidence from which the jury might reasonabty find or infer a fact, and they find accordingly, this court will not disturb the verdict because there is other evidence in conflict with that on which the finding is based. But where the evidence in support of the finding is clearly and overwhelmingly, or conclusively contradicted, it would be a reproach to the law, and a flagrant outrage upon the rights of parties to refuse to disturb the verdict, simply because it had been found by a jury.”
No one can find fault with the theory of the rule or of the exception thereto, so clearly stated by the distinguished judge, who wrote the opinion of the court, from which the extract cited was taken. Practically, however, the exception to the rule can not be safely used. For, how can this court or its judges possibly know, that the evidence in support of the verdict or finding has been “ clearly and overwhelmingly, or conclusively contradicted?” To arrive at such a conclusion, must we not weigh the evidence? If so, how can we, as an appellate court, by merely reading the written evidence, without any personal knowledge of the
In the case at bar, as it was tried in the court below, the controlling question for decision by the jury was, whether or not the appellee had executed, or authorized any one to execute for him, the written agreement with the appellant sued on in this action. The record shows, that the case was tried by two different juries, and on each trial the general verdict and the special findings of the jury were in favor of the appellee. The appellant had the larger number of witnesses in its behalf, and if the weight of the evidence could be properly determined by merely reading it, as we find it in the record, it would seem to.us that the verdict of the jury was not sustained by the weight of the evidence. The appellee testified in his own behalf, and was his only witness. His evidence was plain, straightfor
The judgment is affirmed, at the appellant’s costs.