North Chicago Street Railroad v. Fitzgibbons

Mr. Justice Waterman delivered the opinion of the Court. This was an action to recover damages for personal injuries sustained by appellee in stepping off one of appellant’s cars. The question in dispute was'whether the car had stopped and started up as appellee was getting off, or whether she got off as the car was stopping and before it came to a halt. Appellee and one other witness testified that the car having stopped, she attempted to alight, and while doing so, the car started and she was thus thrown to the ground. Five witnesses testified that appellant got off before the car stopped, and the testimony of five others is not consistent with appellee’s statement. Of these ten witnesses but one was at the time of testifying in the service of the company; three, including this one, were in its service when the accident happened. Appellee called a police officer, and his testimony not sustaining appellee’s account of the occurrence, she attempted to introduce a police minute book showing a report made by such officer of the accident. It appeared that the police officer made to the desk sergeant a report of the accident, and that the desk sergeant committed to writing what was told to him. We do not think that this report can be considered by us in arriving at a conclusion in this case. The very great preponderance of the evidence is with the appellant. Appellee, if entirely uninfluenced by her position in the case, can not be presumed to have had a more accurate remembrance of the circumstances leading to the accident thaw the other witnésses. It is true that juries are not to count witnesses so much as to weigh what they say; and a reviewing court must bear in mind, that to a jury is the determination of the question of fact committed. Nevertheless we can not fail to notice wherein, not the mere preponderance, but the great preponderance of the .evidence lies. There is not in the statements of the witnesses for appellant anything inherently improbable, nor does it appear that they have any reason for being biased or testifying untruthfully. The judgment obtained, $14,200, is a large one, and we think that the evidence presented by this record is such that the cause should be committed for another trial. The judgment of the Circuit Court is reversed and the cause is remanded.