wkcimanu v. MUT. mum INS. 00. 27
plaintiff after the death of her husband, including interest. There
was subsequently a remittance entered by plaintiff of $300, and the
court rendered judgment for the remainder, $6,206.99.
Whereupon the defendant moved the court to set aside the verdict
and judgment, and grant a new trial of the case for the following
reasons, to-wit:
·*(1) Because the verdict is against law; (2) because the verdict is against
the evidence; (3) because the verdict is against the weight of evidence; (4)
because the verdict is so repugnant to the evidence in the case as to indicate
· prejudice and passion in the jury against the defendant, and of mere favor to- I
wards the plaintiff; (5) because there was no evidence in the cause of the death
of the insured, William Wackerle; (6) the court erred in charging the jury that
they were sole judges of the issues in the cause."
A. R. Taylor, for plaintiff.
Glover el Shipley, for defendant.
Taser, D. J . A full examination has been made of the evidence, ‘
which was one peculiarly for'a jury. It was on both sides full of (
doubts, inconsistencies, and contradictions. Turn as we may in the (
analysis of the evidence, strange and irreconcilable aspects are pre-
sented. The first point to be established by plaintiff was the death of
her husband. That rested on the testimony of several witnesses y
concerning the railroad accident, and the identity of the person killed
thereby.
The evidence of the plaintiff and others as to the skeleton exhumed
some four or more years after such killing, establishes to the satisfac-
tion of the court that the exhumed skeleton was not that of the man
killed, supposed to be William Wackerle, on December 25, 1872.
The court directed the attention of the jury especially to that fact.
Not that it was conclusive, but because it tended to show what weight
— should be given to other testimony. It may be that the exhumed skel-
eton was not that of William Wackerle, and hence the accuracy of
plaintiffs testimony became questionable. Yet there was other evi-
dence as to the death of the party killed, independent of the exhuma-
tion in 1877. It was therefore for the jury to decide whether, despite
the mistakes as to the identity ofthe skeleton, William Wackerle was
killed as alleged.
The case as presented by the evidence was remarkable in many
other aspects, concerning which it is useless to comment. There are
several depositions wanting which the court has been anxious to
read and analyze, but by some accident they have disappeared.
Hence the court has to rely on its memory as to their contents, and if