80 So. 333 | Miss. | 1918
delivered the opinion of the court.
The appellee, W. C. Elder, sued and obtained judgment for nine hundred dollars, against the Southern Eailway Company for the conversion of a car of cattle, which he claimed to have loaded and delivered to the appellant railway company at Huntsville, Ala. The appellant railway company denied having received the car of cattle and disputed the claim with an abundance of evidence at the trial. The claim of the appellee depended entirely upon his own testimony, which the jury believed in preference to the great preponderance of evidence offered by the appellant railway company.' After a most careful consideration of the testimony introduced by the appellee and appellant, it is our opinion that the verdict of the jury was clearly contrary to the overwhelming weight of the testimony in the case and seems manifestly wrong.
It appears from the testimony of the plaintiff that he was a cattle buyer in Huntsville, Ala., operating in
It was shown by credible and undisputed testimony that the appellee had thirty-five head of cattle in a pasture near Huntsville, and that on the date of the
While we do not say that the testimony of the appellee is unbelievable or palpably false, yet we are persuaded that in many respects it is unreasonable and unconvincing to the ordinary mind. The appellee’s case must be viewed as a remarkable story, coming, as it does, from an- experienced cattle shipper. It is unsupported by any other material fact or circumstance in the case. On the other hand, the facts and circumstances in the proof animate or inanimate, bear strongly against his unreasonable story. His conduct and actions speak loudly against his claim of.loss.
We think the judgment of the lower court should be reversed, and a new trial on the facts be had before another jury.
In Fore v. A. & V. Ry., 87 Miss. 211, this court said, on page 218, 39 So. 493, 494:
“Occasionally it is the duty of a trial court to set aside a verdict and grant a new trial, where the judge is of the opinion that the finding of the jury is clearly against the great preponderance of the evidence.”
We think this is such “occasional” case,-and we may add is rare and exceptional.
Reversed and remanded.