Dodd v. Postal Telegraph-Cable Co.

[238]

HOUSED, J.

On this appeal, in substance the appelants concede that through the negligence of the defendants, and without contributory negligence on the part of plaintiff, the. latter sustained certain injuries for which she was entitled to a judgment for “some damages”.

The first point presented by the appellants as affording a sufficient reason for an order by which the judgment. would be reversed, to wit, that ‘ ‘ the evidence establishing and demonstrating that plaintiff gave false testimony relating to the state of her mental and physical condition prior to the accident in question, and supporting the issue that her physical condition was purely mental and imaginary, and that she was a malingerer within the theory of the defense”, goes merely to the effect either that the evidence introduced by the defendants largely preponderated over that presented by plaintiff, or that the latter evidence was insufficient to support the judgment. In that connection, an examination of the evidence introduced on the trial of the action merely leads to the inevitable conclusion that, as between the evidence offered by plaintift and the defendants respectively, a conflict existed. In such circumstances, the rule is well established that if the verdict of the jury is supported by substantial evidence the ensuing judgment cannot be disturbed; and since the necessary foundational fact in that regard herein is clearly apparent, it follows that the point suggested by the appellants may not prevail.

It is next urged by the appellants that the trial court erred in giving to the jury the following instruction:

“The merits of the ease of

Dodd

v.

Siegelman,

Number 114438 on the records of this court, are not before you for determination herein. You are to consider such evidence as has been received with respect to the said ease solely for the purpose of determining the merits of plaintiff’s claim in the present action, with respect to the injuries alleged by her to have been received in the accident mentioned in the complaint in the present action, and the disabilities alleged by her to have flowed or resulted therefrom.”