#### J. W. Fernald & Co., Defendant in Error, v. Chicago, Burlington & Quincy Railway Company, Plaintiff in Error.

Gen. No. 16,243.

Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.

Smith, J., dissenting.

Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.

Heard in the Branch Appellate Court at the March term, 1910.

Affirmed.

Opinion filed February 20, 1912.

J. A. Coxthell, for plaintiff in error.

Eddy, Haley & Wetter, for defendant in error; Charles H. Pegler, of counsel.

Mr. Justice Clark

delivered the opinion of the court.

In this ease a recovery was had by the defendant in error against the plaintiff in error for the value of a horse and damages to a wagon, the horse having been injured in such a manner as to require his being shot, and the wagon damaged in a collision upon a street crossing.

The case was tried before the court without a jury, and the error assigned for reversal is that the finding-upon which the judgment is based was clearly and manifestly against the weight of the evidence.

We have examined the record with great care, and while we are unable to say that we should have reached the same conclusion as the trial judge if the case were before us as a trial court, we do not feel warranted in saying that it is clearly and manifestly against the *420preponderance of the evidence. Unless we can do so it is onr duty, under repeated rulings of this court and the Supreme Court, to affirm the judgment, which is accordingly done.

Judgment affirmed.

Mr. Justice Smith dissents.