1 So. 2d 760 | Ala. Ct. App. | 1941
Action for damages by plaintiff, Jack Kemp, a minor, suing by his next friend and mother, Myrtle Kemp, against Lamar Life Insurance Company, a corporation.
The plaintiff based his action on the negligence of defendant (appellant) in the operation and maintenance of a building, causing plaintiff to fall down the elevator shaft.
Appellant's able counsel have seen fit — while stoutly contending that the evidence was insufficient to sustain the verdict of the jury — to make no "condensed recital of the evidence in narrative form," in accordance with Supreme Court Rule of Practice 10. We will not undertake to do so.
It is perhaps enough that we say that no question is presented with reference to the pleading in the case; and none that we believe entitled to notice here with regard to the admission or rejection of testimony.
As we read the brief filed here on behalf of appellant, its main — if not altogether sole — serious contention is that the trial court erred to a reversal in failing to grant its motion to set aside the verdict of the jury because it was opposed to the great weight of the evidence. It is not even contended that plaintiff's (appellee's) testimony did not make out a case against appellant fit to be submitted to the jury in the first instance.
It is of course the law that "where the preponderance of the evidence is against the verdict and so decided that the court is convinced that it is wrong and unjust, a new trial should be granted." Byars v. Hollimon,
Likewise is it well understood that " 'this court has not renounced its duty nor neglected its power' * * * 'to revise the verdicts of juries and the conclusions of trial judges on questions of fact, where, in our opinion, after making all proper allowances and indulging all reasonable intendments in favor of the court below, we reach a clear conclusion that the finding and judgment are wrong.' " Carraway v. Graham, supra [
But it is also true that "the findings of a trial court are, on appeal, presumptively correct; and the burden is upon the appellant to show error. The verdict of a jury and the judgment of a trial court are solemn things; and they should not be overturned by an appellate court, unless a good, legal reason therefor is shown." Girardino v. Birmingham Southern R.R. Co.,
Applying the principles quoted above, all of them, we are unable to reach the conclusion here that the judgment against appellant should be reversed.
The testimony of appellee, it is true, was violently contradicted by that on behalf of appellant. And, "counting noses," it was far outweighed by same.
But, unfortunately for appellant, that is not the way evidence is weighed.
Applicable here is the language used by Judge Bricken — now our Presiding Judge — in the case of Matthews Turpentine Co. v. Keefe,
Likewise applicable here is the language of our Supreme Court in the opinion in the case of Sloss-Sheffield Steel Iron Co. v. Bearden,
We seem to have said enough.
The judgment is affirmed.
Affirmed.