Peyton v. Lewis , 10 Ala. App. 360 ( 1914 )

WALKER, P. J.

The only matter presented for review is the action of the trial court in setting aside the verdict, and granting a new trial. One of the grounds assigned in the motion for a new trial was “that the verdict and judgment were contrary to the great weight of the evidence in said cause.” The order made on the motion does not disclose upon what ground it Avas granted. If it can be affirmed that it was not improperly granted upon any ground assigned, the judgment cannot be reversed. — Smith v. Tombigbee & Northern Ry. Co., 141 Ala. 332, 37 South. 389.

It is an established rule governing the revieAV on appeal of an order granting a neAV trial, on the ground that the verdict Avas not supported by sufficient evidence, or that it Avas contrary to the decided weight of the evidence, that the order or judgment should not be reversed, unless the evidence plainly and palpably supports the verdict. — Cobb v. Malone, 92 Ala. 630, 9 South. 738; Merrill v. Brantley & Co., 133 Ala. 537, 31 South. 847; Smith v. Tombigbee & Northern Ry. Co., 141 Ala. 332, 37 South. 389. As stated in the opinion rendered in the case last cited, “this rule is founded partly upon the fact that the trial judge’s opportunity for pronouncing upon the Aveight and convincing poAver of the testimony is better than ours.” The testimony in the case at bar Avas very conflicting. That in support of the plaintiff’s contentions may have been so marked by infirmities, obvious to the trial judge, with the witnesses testifying in his presence, but not disclosed to us by the Avritten report of it contained in the record, as to make it apparent that no impartial tribunal could really credit it; Avhile the opposing testimony may have been so free from any indication of untrustworthiness as fully to justify the conclusion that the overAvhelmingpreponderance of the evidence was in favor of the defendant. We are not to be understood as expressing or intimating any opinion as to the Aveight or credibility of the testimony in the case further than to say that the record does not enable us to conclude that it plainly and palpably supported the verdict. It follows that the order or judgment appealed from must be affirmed.

Affirmed.