118 Ky. 762 | Ky. Ct. App. | 1904
Affirming.
On a former appeal (64 S. W., 506), 23 R., 942, the judgment was reversed because, in our opinion, the verdict was palpably against the weight of the evidence. Upon the next trial the jury again found for appellees. On this appeal the court is asked to reverse the judgment for the same reason.
Whether or not the evidence is exactly the same we have not thought necessary to examine into, although we notice on this hearing certain facts not adverted to before, which from their nature must have had an appreciable and proper effect upon the jury. Tt would not be profitable to go into a minute review of the evidence. It was wholly circumstantial. It supports a theory of the killing of the colt consistent with the jury’s finding, and tends to refute any other reasonable theory of the occurrence. Even as the case appeared to us when here before, we thought the question one properly for the jury, and would not say that a peremptory instruction because of a total failure of evidence should have gone. It is the business of the jury to try the fact. That of the judge is to see that none but competent and relevant evidence tending to establish or disprove it is admitted to them, and to give them information, in the way of instructions, as to the law under which they must apply the evidence. In common-law trials the jury is not regarded as helpers to the judge. When all the facts at all admit of a conclusion to which the jury comes, and which is permitted by the law, their finding is more than persuasive. It is obligatory upon the judge, except that, if he should believe it against the weight of the evidence, he may order another trial. This court can do this only if the verdict is palpably against the evidence. So that when two or more verdicts agree in establishing a disputed fact, and the trial judge who heard the
Judgment affirmed, with damages.