The opinion
On Motion for Rehearing.
In a motion for rehearing, our attention is called to a statement in the opinion that the pasture of appellee joined the right of way of the railroad. The evidence shows, and we find, that in fact a public road 60 feet wide ran between the right of way fence and the pasture fence. Whether this right of way fence is on the line of the right of way does not appear. At any rate, we make the requested correction in our findings. We do not regard this as material, as it does not affect the testimony of appellee’s witnesses, which the jury found to be true, that the fire caught inside the pasture from sparks from the engine.
In the motion for rehearing appellant insists with great earnestness and very evident sincerity that we have erred in adopting the conclusions of the jury that the fire was started by sparks from the engine. We do not understand that it is contended that the testimony of appellee’s witnesses is not sufficient to support this conclusion, but that the testimony of appellant’s witnesses is clear and positive to the contrary, as is shown in the opinion, and that the testimony of appellee’s witnesses is shown, not only by this testimony of -appellant’s witnesses, but by inconsistencies and contradictions in their own statements, to be false. We have again examined all the testimony with great care, and must adhere to our original conclusion. This appears to us to be a case where the jury had to judge whether they would believe the one or the other set of witnesses; in other words, a case involving the credibility of the witnesses, and the weight to be attached to their testimony. While this court has not and will not shirk the responsibility of setting aside a verdict of a jury, where the evidence so preponderates against it as to show it to be clearly wrong, no ap-’ pellate. court under our system of procedure can properly do this where the solution of *252 the question depends upon the credibility of the witnesses, unless perhaps in a case where the testimony of witnesses necessary to support the verdict is shown by the undisputed physical facts, or by contradictions or inconsistencies in such testimony to be clearly false. To do so would be simply to invade the province of the jury in a matter specially committed to them by the plain terms of the law. This matter is, we think,' wisely committed to the jury, subject, of course, to the control of the trial court in the first instance, and in a proper case of the appellate tribunal. This case does not arise where some of the witnesses are clearly shown to have testified falsely, where such false testimony is not essential to support the verdict. If in eliminating, all such testimony thus discredited, there is left enough evidence to support the verdict this case does not arise.
It is not improper that we should say that, upon investigation of the authorities upon the question of the admissibility of the testimony of the witnesses Crowder and Roberts, we were in very great doubt as to its admissibility. We concluded to follow the more modern rule, which we believe to be more in accordance with reason and common sense, and to approve the ruling of the trial court. As to our conclusion with regard to the charge so much criticized by counsel for appellant, we are content to adhere to our original conclusion, resting upon what we consider the holding in the Carter Case cited in the opinion.
These questions have been pressed upon us with great vigor and earnestness in the motion for rehearing, which is not only excusable, but commendable, in view of what counsel evidently considers many and vital errors in our ■ conclusions. If injustice has been done appellant by the verdict in this case, which is, of course, possible, it is not such as an appellate court can correct without going entirely beyond its proper function.
The motion for a new trial is overruled.