Devericks v. Fair Grounds Improvement Co.

Robinson, Judge: The verdict of the jury was in plaintiff’s favor. On motion of defendant, the court set aside the same and awarded a new trial. Plaintiff, by ivrit of error, maintains that the verdict [175] could not rightly be disturbed and that he should have had judgment thereon. We find no error in the order setting aside the verdict and awarding a new trial. The court did not invade the province ■of the jury in making the order. The case by no means turned wholly on conflicting oral testimony of witnesses in the presence of the jury. Strong documentary evidence, as well as some uncontroverted facts and circumstances, corroborate the oral testimony introduced on behalf of defendant. The court was within its province in adjudging that with this corroboration the evidence in the ease so preponderated in defendant’s favor as to negative right of recovery in plaintiff. The court was entitled to “go beyond the question of the credibility of the witnesses who gave conflicting oral evidence in the presence of the jury, and find documentary' evidence, uncontro-v.erted evidence, facts or circumstances, or some of these, which when considered with such conflicting oral evidence plainly constitute a decided weight and preponderance of evidence against the verdict.” Coalmer v. Barrett, 61 W. Va. 237. It is not essential to detail the character of the controversy or the particular facts in the case. It suffices to say that a review of the evidence discloses ample justification for the order setting aside the verdict. The evidence as a whole plainly preponderated in defendant’s favor. The verdict was .decidedly against the weight of the evidence. Though there was conflicting oral testimony of witnesses in the presence of the jury, yet on the side of defendant the conflict was settled by documentary evidence, uncontroverted facts and circumstances, which the jury could not disregard. The order complained of will be affirmed. Affirmed.