Hot Springs Railroad v. McMillan

Wood, J. First. It is conceded by the learned counsel for appellants that the question of whether or not there was fraud in *the execution of the release was submitted to the jury upon proper instructions, but it was ably contended in oral argument, and in brief, that the evidence on this issue was not legally sufficient to support the verdict. We have carefully examined the record on this question of fact, and have reached the conclusion that there was evidence to support the verdict. We do not hesitate to say that, were it the province of this court to pass upon the weight of the evidence and the credibility of witnesses, we would find in favor of appellants on the question of the execution of the release. But, according to the rule long ago established by this court, since followed, and recently approved in many cases, it is the exclusive province of the jury to determine disputed questions of fact. 1 Crawford’s Dig., Appeal & Error, VIII, e; St. Louis Southwestern Ry. Co. v. Byrne, 73 Ark. 377; St. Louis, I. M. & S. Ry. Co. v. Wilson, 70 Ark. 136; St. Louis & S. F. Ry. Co. v. Kilpatrick, 67 Ark. 47; Catlett v. Railway Company, 57 Ark. 461. The testimony of McMillan certainly tends to establish the allegations . of his reply to the answer of the Hot Springs Railroad Company on the subject of the release. While his testimony in regard to'the preparation and execution of the release is contradicted in every material essential by the positive testimony of witnesses for appellants, and while the testimony of McMillan on this question appears to us to be inherently weak and contradictory, yet, unless, we overturn a long line of decisions of this court, we must hold that all these were matters for the jury to settle; and, as they were properly instructed, their decision is final. Second. The court, over the objection of appellants, permitted the plaintiff to testify in regard to the custom of the Hot Springs Railroad Company to continue the wages of its employees while they were disabled from work on account of injuries received in the service. This testimony was proper. Appellee was contending that the purported release was fraudulent. It recited a consideration of $346.05 as paid, and $50 in addition to be paid. These recitals conveyed the impression that the railway company had paid and was to pay the amounts named as part consideration for the execution of the release. Proof that these recitals were false, by showing that these amounts were already due him, according to the custom of the company in dealing with its disabled employees, certainly tended to establish the contention of appellee that the alleged release was fraudulent, and that when he signed same he did so under the impression that he was signing a receipt for money due, and which the company had paid according to its custom, and not as a part consideration for a release. " The testimony was germane to the contention of appellee as to the fraudulent execution of the release. Moreover, appellants have nowhere denied that such was the custom, and they do not now contend, as we understand, that the $346.05 and the $50 were paid as part consideration for the execution of the release. Therefore we do not discover any possible prejudice to appellants by the introduction of the testimony. Third. The alleged negligence of the appellant Hot Springs Railroad Company in failing to exercise ordinary care to provide McMillan safe appliances, and the alleged contributory negligence of McMillan in failing to exercise ordinary care in the use of the appliances furnished him, were questions of fact properly submitted to the jury, and their verdict is supported by legally sufficient evidence. Fourth. It was within the sound discretion of the trial court to refuse the motion for new trial setting up newly discovered evidence. Anderson v. State, 41 Ark. 229; Armstrong v. State, 54 Ark. 370; Mutual Life Ins. Co. v. Parrish, 66 Ark. 612; St. Louis S. W. Ry. Co. v. Byrne, 73 Ark. 377. We find no abuse of the court’s discretion in this case. On the contrary, we think it was properly exercised. Fifth. The contention that the court erred in rendering a personal judgment against appellant, Choctaw, Oklahoma & Gulf Railroad Company, was not made a ground of the motion for new trial. Such question will not be considered here for the first time. Affirmed.