120 Ark. 320 | Ark. | 1915
J. H. Hall and Vince Gage owned adjoining buildings in the city of Hot Springs, Arkansas, which were destroyed by fire on September 1,1913. Hall began the erection of a new building and just after it was completed the wall of the building belonging to Gage, which had been.left .standing 'after the fire, fell over and crushed the new building of Hall. Hall sued Gage to recover damages and alleged that the damage to his building was due to the negligence of Gage in leaving this wall standing after the fire. This is the second appeal in the case. The judgment in favor of the defendant was reversed on the former appeal and reference is made to that opinion for a mere extended statement of the issues. See Hall v. Gage, 172 S. W. 833, 116 Ark. 50.
On a retrial of the case the jury returned a verdict for the plaintiff Hall in the sum of $350.00 land from the judgment rendered Hall has duly prosecuted an appeal to this court. Gage prosecuted .a cross-appeal.
There was the added circumstance that the witness had testified as to other material issues and had been flatly contradicted by the evidence ¡adduced in behalf of the defendant. The jury were the sole judges of the credibility of the witnesses and in ¡weighing their testimony had a right to believe all or a part- of the testimony ¡of any. witness. They had the right to receive that part of the testimony which they believed to be true and to reject that part wMch they believed to be false. When all these circumstances are considered we do not think it can be said that the testimony adduced in behalf of the plaintiff was uncontradicted and that for that reason the judgment should be reversed, or that judgment should be rendered here in behalf of the plaintiff for the full ¡amount sued for.
We cannot pass upon this contention of the defendant. He did not file a motion for a new trial and hence we cannot review the alleged ¡assignment of error. The assignment complained of was ¡a proper subject for a bill of exceptions, but not having been made a ground for a motion for a new trial, we can not consider it here. Prairie Creek Coal Mining Co. v. Kittrell, 106 Ark. 138; Thomas v. Jackson, 105 Ark. 353. Many other decisions might' be cited, but the question has been so thoroughly settled by this court that further ¡citation of authority is not necessary..
It follows that the judgment must be affirmed.