Whitaker

This is an appeal from the judgment, and from an order denying defendant’s motion for a new trial

The action was brought to recover damages for injuries received by plaintiff, a boy fifteen years of age, while operating a grooving machine in the defendant’s mill.

As there is a conflict in the evidence on the. question involved, a statement of the facts of the ease, or even a summary of them, is unnecessary. Appellant concedes, as indeed he must, that there is a conflict in the evidence; but he contends that the rule applied by appellate courts in such eases is inapplicable here under the peculiar circumstances of this ease.

It appears from the record that the case was tried before the Honorable W. E. Greene, sitting with a jury; that before the motion for a new trial was made Judge Greene died, and the motion was submitted to another judge of the same court, the Honorable John Ellsworth. Appellant contends that the judge who heard and denied the motion for a new trial, not having seen the witnesses, nor observed their manner of testifying, was in no better position to weigh the testimony than is this court, and that therefore the rule which prevents appellate courts from…