City of Pueblo v. Pinckney , 3 Colo. App. 384 ( 1893 )

Reed, J.,

delivered the opinion of the court.

This suit was brought by appellee against the city of Pueblo to recover damage for a personal injury received by a fall upon the street, through the alleged negligence of the city in failing to keep a sidewalk in repair. It appears that the sidewalk, where the accident occurred, was constructed of boards laid upon stringers or sills, the boards being eight feet long, the width of the sidewalk, and at right angles to the course of the street. It is shown by the evidence that one board was considerably decayed and weakened, not properly supported from below, that appellee stepped upon it and it settled or sprung down ; her foot caught against the next board, or in the opening between the two, caused by the sinking of the board, and she fell, receiving serious and permanent injury.

Issues were properly made by the pleadings, a trial had to a jury, resulting iu a verdict for the plaintiff for $1,645.50, and a judgment on the verdict, from which this appeal was prosecuted. As in all cases of that kind, there was some conflict of testimony. No objections appear to have been made to any testimony offered nor exceptions saved to the ruling of the court. Upon the close of the plaintiff’s evidence a motion was made by the defendant for a nonsuit, which was very properly overruled. Error is assigned upon the instructions of the court, but appears to have been abandoned; it is not urged in argument, nor are the instructions set out in the abstract. Appellant’s contention is based entirely upon the supposed improper finding of the jury in favor of the plaintiff, as being against the evidence.

The correctness of the instructions being conceded, no questions of law presented, and there being evidence to support the verdict, there is nothing for this court to review. It is clearly the province of the jury to find the facts in a case, and unless there is an evident disregard of duty, and a finding is made so at variance with the law and the facts established as to show it the result of improper influence or motives, such finding will not be reviewed. Appellate courts cannot disregard the findings of a jury and substitute themselves in the place of it; within its limits and line of duty its rights and powers are as well defined as those of the presiding judge or the judges of this court. This principle has been so often asserted by both courts of last resort that a recitation of the cases is unnecessary. Where there is evidence to support the verdict it will not he disturbed, even though in cases of conflict a preponderance of the evidence appears to be against it; hence the futility of prosecuting appeals where the only error relied upon is the finding of questions of fact by a jury, where the evidence is conflicting.

The judgment of the district court must be affirmed.

Affirmed.