Webster v. Gadlin ( 1871 )

Opinion by

Judge Hardin :

We perceive no essential error in the action of the court, as to instructions, given or refused. But we are constrained to reverse the judgment for the reason that the verdict of the jury is not sustained by the evidence.

Giving to the circumstances proved, as pointing to the appellant as guilty of the trespass alleged, their greatest weight, they do not, in our opinion prove the charge with any reasonable certainty; but whatever might have been their effect, we regard it as neutralized by the positive statements of the defendant, proved and rendered competent by the action of the plaintiff; and the court ought to have granted a new trial because the verdict was not sustained by the evidence, but there was a decided preponderance of the evidence against the verdict.

The judgment is reversed and the cause remanded for a new trial. .