| Ark. | Dec 24, 1904
This case is submitted on a motion to advance and affirm as a delay case. The appellant presents two questions which its counsel earnestly insist are errors. The first is that the verdict is contrary to the facts, and the second is that the first instruction given at the instance of appellee was erroneous. Chief Justice Cockrill thus defined the rule in these cases: “To justify a motion to advance a cause upon the docket on the ground that the appeal is prosecuted for delay only, the absence of error should be apparent upon a short and cursory investigation of the record.” Vaught v. Green, 51 Ark. 378" date_filed="1888-11-15" court="Ark." case_name="Vaught v. Green">51 Ark. 378.
A reading of the record shows that if two witnesses testifying for appellee told the truth, and the jury has believed them, the verdict is clearly right. It is true that they are contradicted by others, principally employees of appellant; but the jury, and not this court, determines such conflicts.
The instruction complained of is alleged to be contrary to many decisions from many courts which are cited; but no reference is made to the recent and well considered case of Inabinett v. St. Louis, I. M. & So. Ry. Co., 69 Ark. 130" date_filed="1901-03-09" court="Ark." case_name="Inabnett v. St. Louis, Iron Mountain & Southern Railway Co.">69 Ark. 130, and no reason assigned why it should be overruled. The instruction complained of is in the exact language of that case.
Therefore this case satisfies the rule in Vaught v. Green. In the application of this rule, however, it may be well to again call attention to the easy abuse of this remedy pointed out by Judge Cockrill: “But the statute which establishes the practice of hastening the determination of appeals prosecuted merely for delay does not intend to require that [the expenditure of time and labor] of the court at the expense of parties whose causes have precedence on the docket. A delay case must not delay litigants in other cases.” Vaught v. Green, supra.
The judgment is affirmed with the penalty of 10 per cent., as provided in section 1062, Sandels & Hill’s Digest.