R. T. McNair vs. South Carolina Railroad Company.
New trial ordered upon a question of fact — the verdict having nothing to sustain it, and being therefore capricious.
BEFORE Q’NEALL, J., AT CHARLESTON, SPRING TERM, 1856.
The report of bis Honor, tbe presiding Judge, is as follows:
“ Tbis was an action to recover for two boxes of tobacco, alleged to bave been received by tbe Company for transportation and not delivered at the place to wbicb they were consigned.
“ Tbe receipts of tbe Company signed by two of its agents were given in evidence, dated tbe first, 6tb December, 1853, for fourteen boxes; tbe second, 7th December, 1853, for seven boxes, making together twenty-one. Tbe freight list showed that nineteen were delivered: tbis list given in evidence by tbe plaintiff, bad a memorandum upon it, that tbe nineteen boxes weighed two thousand two hundred and forty pounds, wbicb was tbe weight of tbe twenty-one boxes.
“Tbe Company alleged that in truth and in fact it bad received only nineteen boxes and that tbe receipts were given for a larger number by mistake, and I thought tbe mistake was clearly shown.
“ J. A. Heidtman, tbe agent of tbe Wilmington Boat proved that be delivered to tbe plaintiff on tbe 6tk December, 1853, nineteen boxes of tobacco.
“ J. A. Miles, tbe receiving clerk of the railroad, but who signed neither of tbe receipts, said be was present at tbe delivery by tbe plaintiff of tbe tobacco in two parcels, and that nineteen boxes were delivered. Tbe proof of these two *285witnesses with tbe memorandum on tbe freight list given in evidence by tbe plaintiff, made tbe mistake plain and palpable to my mind.
“ Tbe jury, however, found sbmething in tbe case to justify them in coming to a different conclusion. They found for tbe plaintiff one hundred and five dollars.”
Tbe defendants appealed, and now moved for a new trial, on tbe ground:
That tbe fact of a mistake in tbe quantity specified in tbe receipt was clearly proved, and that tbe verdict of tbe jury was directly contrary to tbe charge of bis Honor and to tbe. law.
Conner, for appellants.
Yeadon & McBeih\ contra.
Curia, per O’Neall, J.
In this case tbe mistake in tbe receipts was, we think, most clearly shown.
To show this it is only necessary to state tbe d'efendant’s proof, as set out in tbe report.
Tbe plaintiff, on tbe 6th of December, received by the Wilmington Boat, nineteen boxes of tobacco. On tbe same day, as appears by tbe first receipt of tbe defendant’s, fourteen boxes were received, and on tbe next day, by tbe second receipt, seven boxes more were received, making thus twenty-one boxes, two more than tbe plaintiff (who is stated by bis counsel to be a Virginian, trading in tobacco,) received from tbe Wilmington Boat. Tbe receiving clerk of tbe defendant proved, that be was present when tbe plaintiff’s tobacco was received by tbe defendant, and that only nineteen boxes were received. Tbe freight li^fc given in evidence by tbe *286plaintiff, showed by a memorandum, upon it, that tbe nineteen boxes delivered at tbe destination, weighed two thousand two hundred and forty' pounds, the precise weight of the supposed twenty-one boxes.
How after this, there can be any room to doubt the mistake, I cannot conceive.
It is true that the verdict of the jury, when there may be conflicting proof, is generally conclusive. But when the facts are all on one side, and the jury resort to conjecture, or prejudice, to find against them, it is the duty of this Court to order a new trial.
Formerly the rule was uniform, that, where the presiding Judge reported, that the verdict was clearly against the evidence, a new trial followed, as of course. That such would be a wise course now, I have no doubt. For the circuit Judge knows, better than we can know, whether the verdict has any such support in fact as to justify its being sustained against the apparent weight of the evidence.
But without resorting to the opinion of the Judge below in this case, (as expressed in his report) we think the verdict has nothing to sustain it, and is therefore capricious.
The motion for a new trial is therefore granted.
Whitster and' MuNRO, JJ., concurred.
Motion granted.