Lewis v. Whidbee , 36 Ga. 371 ( 1867 )

Walker, J.

The Court below was satisfied with this third verdict, concurring almost precisely with its two predecessors. We are satisfied that it is not too large; it might well have been larger. The great weight of the testimony shows that the negro was not at all at fault; and we apprehend the jury failed to increase the verdict by adding interest as damages in consequence of the charge given on the subject of both parties being at fault. If the charge asked had been given, and the jury in consequence thereof had found for defendant, the verdict should have been set aside. Such being the case, should a charge have been given the tendency of which was to produce a verdict that could not be permitted to stand ? Would it not, in legal contemplation, be a charge not applicable to the facts of the case? We think so, and therefore the Court did right to refuse to give it. Though there may be some slight evidence in favor of a hypothesis, but not sufficient to uphold a verdict, should that hypothesis be submitted to the jury ? For what purpose; to what good end ? The only effect it could have would be to lead the jury into error.

Judgment affirmed.