Opinion
Decided October 29, 1929.
Appeal from Harlan Circuit Court.
ASHER SHEEHAN for appellant.
LEE SNYDER for appellee.
Affirming.
The facts of this case are stated in the opinion on the former appeal. See Knoxville Tinware, etc., Co. v. Howard, 219 Ky. 106, 292 S.W. 762. On that appeal there had been a verdict and judgment for the defendant, which was reversed for erroneous instructions given on the trial. On the return of the case to the circuit court, it was tried again on much the same evidence. The court instructed the jury as directed by this court. The jury found for the defendant. The plaintiff again appeals.
The only ground for reversal relied on is that the verdict is against the evidence and should be set aside on this ground. It is the well-settled rule of this court that the verdict of a properly instructed jury will not be disturbed here on the facts, unless it is palpably against the evidence. The jury see and hear the witnesses. The Constitution (section 7) guarantees to the litigant, in cases like this, a jury trial, and where there is no error in the record the verdict of the jury cannot be disturbed, on the ground that it is not warranted by the evidence, where there is evidence to support it, and the verdict is not palpably against the evidence.
While the evidence was conflicting here, the credibility of the witnesses was for the jury, and the finding of the jury is not palpably against the evidence. If appellee's version of the contract as set out in the former Opinion was true, the verdict is not against the evidence. This court may not set aside the verdict, because the jury believed one witness rather than another.
Judgment affirmed.