The opinion of the court was delivered by
Valentine, J.:
The plaintiff in error (defendant below) claim that there are three questions for us to decide in this case. These ^questions are as follows: First, Whether proof -of delivery by the plaintiff to the joint agent of the defendant and the Hannibal & St. Joseph Railroad Company of cheeks of the last-named company, calling for the transportation of baggage from Quincy to Kansas City, was suffi*125cient evidence to go to the jury to show prima facie that the defendant received the goods, etc., which the plaintiff alleged he delivered to the defendant to be transported to Junction City. Second, Whether certain specific enumerated and described articles of personal properly are passengers’ baggage, (all the facts and circumstances as to the business of the passenger, and the nature of the articles being undisputed,) is a question of law for the court, and not a question of fact for the jury. Third, Whether the plaintiff, under an allegation that he delivered goods to be carried for a reasonable reward, and issue' thereon, can change his ground upon the trial and maintain his case by proof that he was a passenger, and that the goods were his baggage to be carried as. such passenger.
I. We do not think it is necessary to decide this question. It is not in fact in the case. The court below did not anywhere rule that the delivery of said checks was “sufficient evidence to go to the jury to show prima facie that the defendant received the goods.” Nor did the court even rule that all the evidence upon that subject, taken together, was sufficient evidence to show prima facie that the defendant received said goods. The most that can be claimed is, that the court ruled that the delivery of said checks to the baggage-master of the Kansas Pacific Railway Company, at Kansas City, with the understanding and agreement that said railway company should forward the goods represented by said checks from Kansas City to Junction City, was some evidence that tended to prove that the railway company received the goods, and therefore the court ruled that the said evidence was competent to go to the jury for that purpose along with the other evidence in the case tending to prove the same thing. In this we think the court was correct. It is not necessary that evidence shall prove a thing prima facie in order that it may be admitted. If it tends to prove the thing, or if it is a link in the chain of evidence that tends to prove a thing, it may be admitted. The motion of the defendants, made before the evidence was concluded, asking *126the court to instruct the jury to find for the defendants on the ground that there was no evidence tending to show that the defendants ever received said goods, was rightfully overruled. The motion was made too soon. This case was tried May 25, 1871, at which time §275 of the code (Gen. Stat., 681, since amended,) was in force. Again, there was evidence tending to prove that the defendants received said goods. Taking the whole of the evidence for the plaintiff together we think there was sufficient to prove prima faeie that the railway ^company received said goods. According to the testimony •of plaintiff’s witness the railway company received thirteen ■checks for thirteen pieces or packages of goods; the company weighed them, agreed to forward them to Junction City, charged $15 extra for transporting them from Kansas City to Junction City, and not a word was said about any missing goods. There was strong evidence however on the part of the railway company tending to show that the railway company never did receive said goods. Probably the preponderance ■of the evidence was that way; and it is also probable that in fact the railway company never did receive said goods; but the fault was on the part of the jury in finding as it did, and not on the part of the court for permitting the said evidence to be received by the jury. The case was fairly submitted to the jury by the court. The charge of the court to the jury upon the subject was correct. The court charged “that unless the jury are well satisfied from the evidence that the property came into the actual possession of the defendant at Kansas City the plaintiff cannot recover.” Upon the evidence in the case, and this instruction, together with other .appropriate instructions, the jury found for the plaintiff. The court then, upon a motion for a new trial upon the ground (among other grounds) “that the verdict was not sustained by sufficient evidence,” refused to grant a new trial. The defendant is now without a remedy. We think it has been well settled in this court that where a jury has heard all the evidence in a case, and rendered their verdict thereon; and the court below has refused to set aside the verdict we cannot *127retry the case and render a different verdict, nor even set aside the verdict and grant a new trial provided there is sufficient evidence if uncontradicted to uphold the verdict although the weight or preponderance of the evidence may seem to be against the verdict. Blair v. Fields, 5 Kas., 58; U. P. Rly. Co. v. Coldwell, 5 Kas., 82, 84, and cases there cited; Pacific Rld. Co. v. Nash, 7 Kas., 280; Kansas Ins. Co. v. Berry, 8 Kas., 159; Abeles v. Cohen, 8 Kas., 180; School District v. Griner, 8 Kas., 224; K. P. Rly. Co. v. McCoy, 8 Kas., 538.
II. The question whether certain articles of personal property are “passengers’ baggage,” we forbear to discuss or to decide, as the question is not in the case.
III. Without analyzing either the petition or the evidence, and without critically and in detail comparing their separate parts with each other, we would say there was no such variance between the pleadings and the proof as would defeat the plaintiff’s action. (Mo. Valley Rld. Co. v. Caldwell, 8 Kas., 244.) The plaintiff not only paid for transporting his goods by purchasing passenger tickets, but he also paid extra charges for their transportation. At New York City he paid $120 extra charges for transporting the goods to Junction City, and at Junction City he paid $15 extra charges. The $15 however was afterward returned to him. The evidence does not show that it was understood by the parties that the goods were to be personal baggage ónly, or that they'were to be transported merely as personal baggage. The evidence would tend to show otherwise. It can scarcely be supposed that the agents of the railway company could be mistaken with regard to the character of the tool chest. Those extra charges were probably required as much because the goods were not merely personal baggage as because they were over the ordinary weight carried as personal baggage. The judgment of the court below must be affirmed.
All the Justices concurring.