Tbis аction was instituted by tbe respondents to recover damages suffered by tbem in consequence of tbe alleged negligence of tbe apрellant. Tbe evidence was submitted to a jury, wbo returned a verdict for tbe respondents in tbe sum of $59. Tbe appellant entered a motion for a new trial, wbicb tbe court overruled, and then judgment was entered on tbe verdict. Tbe denial of tbe motion for a new trial tbe apjiellant assigns for error. Tbе appellant insists tbat tbe verdict was unauthorized by tbe evidence.
It appears, from tbe evidence, tbat tbe plaintiffs’ borse, while being driven by onе Milton West, a boy engaged in
Under the averments of tbe сomplaint, it was proper to show that tbe pipe was defective when new, and continued so until tbe injury, or that it became so from age and use, or from any other cause.- If tbe officers or agents of tbe city in charge of tbe water-pipes or of tbe streets, because of incоmpeteney or tbe want of attention, failed to discover that tbe pipe was defective when new, and remained so, or that it had becоme so by age or use, or any cause, and did not repair it with diligence; or if they bad actual notice of tbe particular break, and did not use rеasonable means to warn travelers of tbe danger, or did not repair tbe break, with reasonable diligence, after actual notice; or if tbe pipe remained defective or insecure for such a length of time, and under such circumstances, that such officers and agents, in tbe use of reasonable capacity and diligence could have ascertained such defect and insecurity, and did not learn of it, and did not repаir with reasonable diligence —in either casé tbe city would be chargeable with negligence. Tbe law gave to tbe city of Ogden the control of its strеets, and tbe right to repair them,. and also the right to -lay its water-pipes beneath their surface. To accomplish these ends, it was authorized tо collect taxes, and, having this power, it was required, for the safety of
When therе is no evidence to support the finding of the jury as to any essential fact, or when their finding as to any such fact is clearly against the weight of the evidеnce, the court should not hesitate to grant a new trial; but, when the court is uncertain and in doubt as to the side upon which the evidence prepоnderates, it will not disturb the verdict. The court will not set the verdict aside simply because it inclines to the belief that it should have been otherwise. A party to a law cause has a legal right to submit issues of fact to a jury, and the court should not set aside the finding of a jury on such an issue, unless it is able to say without hesitation, and free from all reasonable doubt, that the finding was wrong. In an equity cause the chancellor regards the finding of the jury on an issue of fact as аdvisory. Its effect is to aid the judgment and conscience of the chancellor. He may disregard such a finding if he merely differs from the jury in respect thereto. The law is different in suits at law. In such, the court must be fully satisfied and clearly convinced that the verdict is wrong.
After a careful consideration of all the evidence in this cause, we are of the opinion that the exception to the ruling of the court below, on a motion for a new trial, is not wеll taken. Other errors were assigned, but we do not consider it necessary to consider them separately in this opinion. We find no error in this record, and therefore affirm the judgment of the court below.