Cullen v. Peschel , 115 Mont. 187 ( 1943 )

I dissent. In my opinion the majority has substituted its judgment for that of the jury as to the credibility of the witness. The majority opinion leaves out much of the testimony which supports the plaintiff's version of what transpired. But even the testimony quoted shows that this is only the usual case where there is a conflict in the testimony of the various witnesses. The jurors were all from Lake county, chosen in the constitutional way. They saw the witnesses and heard their testimony. The learned trial judge, after hearing the testimony and seeing the witnesses, did not find the conflict in the plaintiff's own testimony nor the inherent improbability which the majority in this court sees and that fact is entitled to great weight here. This court has repeated over and over again that credibility of the witnesses is for the jury to determine. The exception is found in Casey v. Northern P. R. Co.,60 Mont. 56, 198 P. 141. The facts in this case do not measure up in any degree to those in the Casey case, and even there the court experienced some difficulty in reaching the conclusion it did, and this court has followed that decision only in the most extreme cases. In my mind the evidence is ample to sustain the verdict of the jury.