Horn v. Arnold, Schwinn & Co.

Mr. Justice Ball delivered the opinion of the court. We refrain from discussing the details of the accident for the reason we are of the opinion that this case must be again submitted to a jury. We have examined the evidence carefully and think that the case as now presented differs materially from that passed upon by the Branch Court in Arnold, Schwinn & Co. v. Horn, No. 9,724. Hence this case is res nova, which we must decide upon the record now before us. Penn Plate Glass Co. v. J. H. Rice Co., 216 Ill., 572. Whether the changes and contradictions in the evidence of appellant as given on a former trial and as given on the trial out of which this appeal grew, were honestly or dishonestly made, was a question not for us upon this motion, hut for the jury, whose duty it is to pass upon the credibility of the witnesses and the weight to be given to their evidence. Offutt v. Columbian C. Co., 175 Ill., 478. Hpon this appeal the only question before us is, is there testimony in the record which fairly tends to support appellant’s cause of action. Taking all the evidence that makes for appellant, and excluding all that is contradictory, we think a case is presented upon consideration of which reasonable minds might reach different conclusions. Hnder these circumstances the facts must be-submitted to a jury. To hold otherwise would be to invade the province of that constituent part of the court. The judgment of the Superior Court is reversed and the cause is remanded. Reversed and remanded.