Canning v. Central Pacific Railroad

By the Court, Crockett, J.: There is a substantial conflict in the evidence, in respect to the time allowed to the plaintiff within which to leave the train. Several witnesses testify that he left the car without any unreasonable delay, and that while descending the steps he fell between the platform and the cars, and his leg was crushed by the moving train, the fall having been occasioned by a sudden jolting caused by coupling the engine to the cars. On the other hand, several witnesses testified that the train remained stationary for three or four minutes, giving ample time for the passengers to descend to the platform in safety. The testimony was all taken by depositions, and counsel asks us to weigh the evidence, which he insists greatly preponderates in favor of defendant on this point. If it be assumed that in such a case it is our duty to weigh the testimony, the judgment must, nevertheless, be affirmed unless it clearly appears to be against the weight of evidence. The appellant alleging error must show it affirmatively, and it will not be sufficient merely to create a doubt upon the point under review. Tested by this rule, we are not prepared to say that the decision of the court below was against the weight of the evidence on this point. The question at issue was whether the train was detained for a space of time reasonably sufficient, under the circumstances, to enable the passengers to descend in safety from the cars. The train reached the station about midnight, in a dark night. The plaintiff was about sixty years of age, and his wife, who was also a passenger, was an unusually corpulent, fleshy woman. They had several small parcels with them, arid when about to leave the car several articles dropped from a basket, which the wife stopped for a moment to replace. This, however, occupied but a moment or two, and the plaintiff, his wife and the witnesses all testify that, with the exception of this momentary delay, they pro [169] ceeded to leave the car immediately after the train became stationary, and while the plaintiff was descending the steps, the concussion produced by coupling the engine to the train caused the plaintiff to fall between the two cars; and before he could be extricated, the train was put in motion, and his leg was crushed. On the other hand, several witnesses, including the conductor, testify that in their opinion the train was stationary from three to five minutes. None of them attempt to state the exact time; but several relate transactions which occurred while the train was stationary, which in their opinion must have occupied several minutes. The estimate of one of them was shown to have been erroneous by several minutes, by means of an experiment afterwards made with a stop-watch. It is notorious that estimates of very minute periods of time, made by ordinary observers, whose attention at the time was not specially directed to the subject, are extremely unreliable; and without discussing the evidence further, it will suffice to say, that we are not satisfied that the finding on this point is against the weight of the evidence. Order and judgment affirmed. Mr. Chief Justice Wallace and Mr. Justice Rhodes dissented.