Hall v. Clayton

PELHAM, J. This action was brought by the appellee claiming damages of the appellant for an assault and battery, and the jury before whom the case was tried returned a verdict against the appellant assessing the damages at $100. Motion to set aside the verdict and grant a new trial on the ground that the verdict was contrary to the weight or preponderance of the evidence was overruled, and the only error assigned here is the order of the court in overruling appellant’s motion. We have read the evidence and find it to be in direct conflict, and, while a preponderance of the evidence as set out in the bill of exceptions seems to be in favor of the appellant, the trial court and jury had advantages in passing on the weight of the testimony and credibility of the witness that we cannot have, and there is sufficient evidence, if believed, and the verdict rendered is persuasive of that conclusion, to support the verdict rendered. The credibility to be given the evidence is for the court or jury trying the case.—Kelly v. City of Anniston, 154 Ala. 631, 51 South. 415. Since the rule that has been so often and uniformly followed was laid down in Cobb v. Malone, 92 Ala. 630, 9 South. 738, it has been settled in this state that the appellate courts will not disturb' the order of a trial judge denying a motion to set aside the findings of a jury on the evidence unless convinced that the preponderance of the evidence against the verdict is so decided as to clearly convince the appellate court that the verdict is wrong or unjust.—Newton Loan & Bank Co., v Reeves, 2 Ala. App.. 441, 56 South. 255; Mobile & Ohio [463] R. R. Co v. Barber, 2 Ala. App. 507, 56 South. 858; Milner v. State, 150 Ala. 95, 43 South. 194; Minchener v. Robinson, 169 Ala. 472, 53 South. 749; Birmingham Ry., L. & P. Co. v. Mason, 144 Ala. 387, 39 South. 590, 6 Ann. Cas. 929; Ala. Gt. So. R. R. Co. v. Hamilton, 135 Ala. 343, 33 South. 157; City of Ensley v. Smith, 165 Ala. 387, 51 South. 343. It is true that, so far as-positive, direct evidence of the assault is concerned, the plaintiff’s case is supported alone by his own testimony, while the defendant’s denial is corroborated by three of his employes. Yet the doctor’s testimony describing the wounds and bruises he found upon the plaintiff’s person, and the statement that they had the appearance of having been made by a blow with a stick or some other weapon of that kind, had a tendency, no doubt, in the minds of the jury to substantiate the plaintiff’s testimony. The weight of the evidence does not necessarily depend upon the number of witnesses (Ala. Gt. So. Ry. Co. v. Frazier, 93 Ala. 45, 9 South. 303, 30 Am. St. Rep. 28; Newton L. & B. Co. v. Reeves, 2 Ala. App. 411, 56 South. 255), and we cannot say, under the established rule governing in the consideration of this question, that error should be imputen to the trial court in overruling the motion, and an affirmance must follow. Affirmed.