Stothard v. Junior Coal & Mining Co.

The opinion of the court was delivered by West, J.: The plaintiff sued to recover damages alleged to have been received while working in the defendant’s strip pit by firing a blast without giving the plaintiff proper warning. In his account of the matter, his story of what occurred made out a case. In his attempt, however, to fix the chronological limits of the affair, his mathematical estimates took him out of •court. After having directed a verdict for the defendant, the trial court, acting upon the theory of Acker v. Norman, 72 Kan. 586, 84 Pac. 531 as applied in Cornwell v. Moss, 95 Kan. 229, 147 Pac. 824, concluded that it would be proper for a jury to choose between the descriptive and the chronological testimony of the plaintiff, and granted a new trial. This ruling was right for two reasons: First, because the court was not satisfied with the former decision (Civ. Code, § 307), and second, because when the evidence even of one witness or one party is fairly susceptible of two different constructions leading to diverse results, it becomes the province of the jury to weigh such evidence and reach the proper conclusion. The judgment is affirmed.