Dempsey v. Seibel

SULLIVAN, PJ.

The only questions of error that are raised, are that the verdict and judgment is clearly and manifestly against the weight of the evidence, and that the verdict is excessive.

We have reviewed the evidence in the case, in -order to ascertain whether under the rules of law there projects from the record a situation which shows that the jury was misled in its verdict, for unless this- appears from the record, the verdict must stand, if there is credible evidence to support it.

When we read the entire record upon the issue as to whether there were clamps from the beginning, we arrive at the conclusion that the great weight of the testimony is in favor of the existence of the clamps from the time of installation, and if this is a fact then the plaintiff who had charge of the room where the step was located, for many months, must have been aware of the actuhl fact concerning the presence or absence of clamps.

It must follow, it appears to us, that if she is correct in her testimony, that at the time of the injury and prior thereto the step was loose, it would be impossible for her not to know it and thus knowing it and for so long a time, and her duties compelling her to care for it, we have come to the conclusion that she would not be entitled to recover even from her own standpoint, because of contributory negligence. This was an. issue raised in the case and while it was properly submitted to the jury, it is our judgment that under the record the conclusion is inevitable, based upon the plaintiff’s own theory, that there is no liability because of contributory negligence.

After sifting all the evidence this is the conclusion we come to and therefore we think the judgment and verdict are clearly and manifestly against the weight of the evidence and thus holding the judgment of the lower court is hereby reversed and the cause is remanded for further proceedings according to law.

(Vickery and Levine, JJ., concur.)