Triay v. Seals , 92 Fla. 310 ( 1923 )

In this case, there is what appears to me to be an irreconcilable conflict in the evidence both upon the question of the defendant's negligence and upon the contributory negligence of the deceased at the time of his injury. Although there seems to me to be credible evidence to support the view that the servants of the defendant, at the time the deceased was injured, exercised all ordinary and reasonable care and diligence, there is also credible evidence to the contrary upon every fact essential to plaintiff's recovery, if the jury believe the latter evidence, which apparently it did.

In such a situation the rule is:

"In passing upon an assignment questioning the correctness of the ruling of the trial court in denying a motion for new trial which is based upon the sufficiency of the evidence to sustain the verdict, the guiding principle for an appellate court is not what it may think the jury ought to have done or what such court may think it would have done had it been sitting as a jury in the case, but whether as reasonable men the jury could have found such verdict. If this question can be answered in the affirmative, the action of the trial court upon such motion should not be disturbed."

"The refusal of the trial court to grant a new trial for insufficiency of the evidence to sustain the verdict, or because the verdict is contrary to the evidence, will not be reversed unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the appellate court that it is wrong and unjust." Wilson v. Jernigan, 57 Fla. 277; 49 South. Rep. 44; see also Jacksonville Electric Co. v. Cubbage, 58 Fla. 287; 51 South. Rep. 139.

Though there is striking conflict in the evidence, it is not so decided as to clearly and convincingly justify the view by an appellate court that the jury was influenced by considerations outside the evidence, or that the verdict is wrong or unjust.

If the evidence for the plaintiff is true, the verdict is not excessive.