Peterson v. Elk Tanning Co.

Opinion by

Mr. Justice Elkin,

This is an action of trespass for damages for injuries suffered by reason of the alleged negligence of the defendant company. The learned trial judge directed a verdict for the defendant on the ground of the contributory negligence of the plaintiff. In other words, that under the evidence the injured party was so clearly guilty of contributory negligence as to warrant the court in so holding as a matter of law. We do not so read or understand the facts of the case as shown by the evidence produced at the trial. If the testimony of the plaintiff and his witnesses is believed by a jury, it would at least be for them to say whether under the circumstances he was guilty of contributory negligence. It may be that if the facts relating to the accident as proved by the witnesses produced by the defendant were undisputed the court upon such established facts might say as a matter of law that the plaintiff was guilty of contributory negligence. The facts are not undisputed and in such cases it is the province of the jury to pass upon the credibility of witnesses for the purpose of determining what the real facts are. We are all of opinion that the questions of negligence and of contributory negligence are for the jury and that no useful purpose can be served by a discussion of the several questions considered in the paper-books.

Judgment reversed and a venire facias de novo awarded.