O'Reily v. Fitzgerald

Mr. Justice Lawrence delivered, the opinion of the Court: The appellee, a boy in the service of 0’B.eily, was sent by his master upon an errand with a horse and wagon in the city of Chicago. Being absent longer than his master expected, the latter went in pursuit of him and found he had stopped where other boys were at play. The appellant jumped into the wagon and, as was alleged on the part of the plaintiff below, struck him a blow which knocked him out and broke his leg. The boy brought this suit and recovered damages. It was insisted on the part of the defendant below, appellant here, that the boy, as he saw the defendant approaching, voluntarily jumped from the wagon. The only question in controversy is, which of these theories is true ? The only witness who actually saw the affair testifies that the appellant struck the boy and thus knocked him from the wagon. On the part of the defendant, one witness testifies, that the boy told witness he jumped from the wagon as the defendant “ went to strike him,” and two others swear the boy told them he jumped or fell from the wagon as appellant approached. The jury have found the theory of the prosecution to be true, and it is manifest, from this brief statement, that it is a case where we ought not to disturb their verdict. The evidence was contradictory, and the degree of weight to be given to each witness was for the jury to decide. It is not One of those cases of plain disregard of the evidence which call for the interference of courts. On the testimony as it stands in the record, we are in doubt how we ourselves would have found, and that is a sufficient reason for not disturbing the finding of the jury. This is to be said against the testimony of the defendant, that it consists wholly of proof of admissions, and such evidence, as is well known, is of a less satisfactory kind than that of witnesses who testify from a personal knowledge of the facts in controversy, as did the witness for the plaintiff. We cannot say the verdict is against the weight of evidence. The defendant asked three instructions which were .refused, but the court drew and gave an instruction correctly embodying the law applicable to the case, and also embodying substantially the instructions asked by defendant. This was sufficient. On the motion for a new trial, the defendant filed, an affidavit showing, that on another trial he could impeach the plaintiff’s witness. It must be a very extraordinary case that will induce courts to grant a new trial in order to afford an opportunity of impeaching a witness. It would make a very dangerous precedent and there is nothing in the present case to induce a departure from the established rule. Judgment affirmed.