#### Andrew Trotier, Appellee, v. East St. Louis & Suburban Railway Company, Appellant.

1. Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.

Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. B. R. Burroughs, Judge, presiding.

Heard in this court at the August term, 1907.

Reversed and remanded.

Opinion filed March 18, 1908.

Schaefer, Farmer & Kruger, for appellant.

Wise & McNulty, for appellee.

Mr. Justice Creighton

delivered the opinion of the court.

This was an action in case, in the Circuit Court of Madison county, by appellee against appellant, to recover damages for a personal injury alleged to have been sustained by appellee by reason of negligence on the part of appellant. Trial by jury. Verdict and judgment in favor of appellee for $12,000.

Appellant has assigned many errors upon the record in this case, and counsel have argued a number of questions. As we view the case, we feel justified in stating at this time merely our conclusions upon these questions.

We are of opinion that each count of the declaration, submitted to the jury, states a cause of action. We do not find any instance in which the trial court materially erred in its rulings with respect to the admission or rejection of evidence. And we find no substantial error on the part of the trial court in the giving or refusing of instructions.

To our minds the serious questions in this case arise as to the state and weight of the evidence. Counsel for appellant strenuously insist that the trial court *190erred in refusing to direct a verdict in favor of appellant. We are not able to say that there is no evidence tending to prove appellee’s case, and while we think the trial court would not have been warranted in directing a verdict, still we are of opinion that as to credibility and weight the state of the evidence is such as made it the duty of that court to have granted appellant’s motion for new trial.

In as much as the judgment will be reversed on the ground that the trial court erred in denying appellant’s motion for a new trial, and as the case may be tried again we do not deem it necessary that we should attempt to detail the evidence, here; neither do we deem it proper to enter into any specific criticisms, or discussion, as to the apparent credibility of witnesses or weight of the evidence.

The judgment of the Circuit Court.is reversed and the cause remanded.

Reversed and remanded.