Fineburg v. Second & Third Streets Passenger Railway Co.

Opinion by Mr. Justice Williams, The injury complained of in this case was received while the defendant company was using horses as a motive power for its street cars. The verdict seems to be clearly against the weight of the evidence. This circumstance standing alone is not a ground for reversing the judgment; but the appellant alleges that the verdict .may have resulted from the manner in which the case was submitted to the jury, and assigns error to the charge of the learned trial judge. Let us see first what case the evidence on the part of the plaintiff presented; and then [102] look at the manner of its submission to the jury. Two witnesses were called by the plaintiff who saw the accident. They were Louis Rosenberg and Hanna Roberts. Rosenberg testified that the plaintiff ran across the street in front of the car, and that while on or near the defendant’s railway track he fell with one foot across one of the rails. Before he could lift his foot from the rail, the car was upon him and his foot was injured. In the same breath he testifies that the distance between the car and the plaintiff, when he fell, was sufficient to have given.the driver opportunity to bring his car to a full stop before reaching the place where the boy had fallen. This witness also admits, in effect, that immediately after this accident happened, he gave an entirely different account of it; and that he then said the boy ran directly in front of the car and was hit by one of the horses and thrown down and received the injury before he could move after falling. Hanna Roberts gave another and different account of the accident. She was at the southwest corner of Third and Catherine streets. The boy was then at the southeast corner of the same intersection. He started to cross over to where she stood, and when just across the track fell towards the curb on the side of the street where she was. She started towards him but before she could reach him the car had passed over his foot. She was very near to him as he fell toward the curb, but she was unable to reach him in time. The injury had been inflicted and the car had passed on before she had taken the few steps that brought her to the place where he lay. It will thus be seen that the contradictory story of Rosenberg was all the testimony in the case on which a charge of negligence could rest. He was contradicted in regard to every statement tending to show want of care on the part of the driver, and most effectually contradicted by all the circumstances surrounding the accident. There were three persons on the front platform besides the driver when the boy was injured. Not one of them saw him or knew of the injury till some time after-wards. The seats in the car were all full, but the passengers were equally in ignorance of the boy and his injury. There were two persons standing on the rear platform, who saw the boy picked up after the car had passed, and called the attention of the conductor to the circumstance, but before they saw the conductor the boy had been taken off the street. Mrs. Paynter, [103] a witness called by the defendant, gives an account of the accident that harmonizes all the circumstances referred to and accounts for the fact that none of the passengers or employees saw the boy fall or knew of his injury at the time. She says she was at her window, two doors from the comer of Third ‘and Catherine streets, and saw the accident. The boy started to cross the street, but falling behind the horses, he came up against the body of the car, put his hand against it, ran alongside of it for a little, and while running fell so that the hind wheel passed over one of his feet. Sherry with another witness called by the defendant saw the boy dart out suddenly into the street, and thought he got in front of the horses, but that this was done so quickly as to make it impossible to stop the car to avoid the accident. With the exception of the testimony of Rosenberg, there was no evidence in this case to justify its submission to the jury. If his testimony, so contradictory in itself, and so thoroughly contradicted by all the other evidence and by all the circumstances, before the jury, was to be submitted as sufficient to justify a verdict, its credibility should have been called to their attention. The pertinent facts affecting its credit and the contradictions of its statements by other witnesses should have been adverted to. The learned judge alluded to him as an example of a class of witnesses whose testimony sustained the plaintiff’s case; but he was not an example of a class. He stood absolutely alone. So far as the facts testified to by him affecting the charge of negligence against the company are concerned, every other witness called on both sides, some five or six in number, testified in a manner that tended with more or less directness to contradict him. In no particular relating to the failure of the driver to do his full duty is he corroborated by a single witness or a single <?ircumstance. The attention of the jury should have been drawn to the situation and credibility of this witness: Riechenbach v. Ruddach, 127 Pa. 564; Lerch v. Bard, 177 Pa. 197. Slight inaccuracies in reviewing the evidence will not be regarded as error: Knapp v. Griffin, 140 Pa. 604; but if the charge is in the nature of an argument on one side, or is inadequate in its treatment of the questions submitted, such defect will be ground for reversal: Young v. Merkel, 163 Pa. 513. There is no complaint of partiality in this case, but of an inadequate presenta [104] tion of the case to the jury, so far at least as the credibility of Rosenberg’s testimony was concerned. This objection is well taken, and may account for the verdict. Why the verdict was not promptly set aside as against the weight of the evidence it is not easy to see. The assignments of error are sustained. The judgment is reversed and venire de novo is awarded.