Chicago & N. W. Ry. Co. v. Van Every

Mr. Justice Sears delivered the opinion of the court. There is presented upon this appeal but one controlling question, viz.: Does the evidence sufficiently support the verdict ? And this question is entirely dependent upon the further question as to whether the collapse of the crown sheet of the engine was caused by insecure rivet heads or by low water. If the cause of the accident was the permitting of the water to get so low in the boiler that there was no water over a portion of the crown sheet, whereby the sheet, exposed to the intense heat of the fire-box, became softened and gave way, then no recovery could be had. Such occurrence from such cause could be attributed only to the negligence of the deceased engineer or to that of his fellow-employe, the fireman. If, however, the water did not get low, so as to expose the crown sheet, and the accident was caused by insecure rivets, made insecure and unsafe by repeated hammering in tightening them up, then a recovery might be had under the declaration. The evidence as to which of these two possible causes did in fact lead to the accident, is not direct evidence, but largely opinion evidence of experts, which is to be considered in connection with certain well known physical and scientific facts. We are of opinion that it can not be said that there was no evidence so far tending to sustain the right of action as to warrant the submission of the issue to the jury. There was evidence which, had it stood alone, would have wari’anted the jury in returning a verdict for appellee, the plaintiff below. But this conclusion does not relieve us from further consideration of the effect and weight of the evidence. We have the further question to detérmine, viz., whether the verdict, as returned, is manífestly against the weight of the evidence. In disposing of this question, consideration must be had of the right of the jury to credit or discredit witnesses, and also of the rule of law, well established, that a mere comparison of the number of the witnesses testifying for or against does not of itself afford a rigid criterion for the determining of the preponderance of the evidence. But with all due regard to these considerations, we are of -opinion that the verdict in this case is against the clear and manifest preponderance of the evidence, and that it should not be permitted to sustain the judgment. When two witnesses testify to a fact as a matter of opinion, and eleven testify against such fact as a matter of opinion, and the testimony of the two is, by reason of their opportunities for knowledge, and by reason of inconsistency in testimony, not entitled to equal weight to that of the eleven, and when the testimony of the two is opposed to well known and established physical and scientific facts, it is difficult to see how it can be said that the testimony of the two can constitute a preponderance over that of the many. The only witnesses who testified that, in their opinion, the crown sheet had collapsed, by reason of the insecure rivet heads, were Herron and Sharkey. The former had never seen the crown sheet in question after its collapse, and he based his opinion as to the cause of the collapse solely upon an examination of one of the rivet heads, taken from the crown sheet after the accident, and the rivet head examined by him had been cupped or inverted, that is to say, it had been pulled out of shape, as an umbrella is which is turned wrong side out by the wind. Another witness, Dolan, testified that all the rivet heads by which the crown sheet was held were like the one which Herron examined, and which made the basis of his opinion. Herron’s testimony, as an expert, is weakened by his statement that a crown sheet sustained only by such rivet heads could not withstand the pressure of the steam when the engine was carrying more than fifty pounds to the square inch. The evidence is uncontroverted that this engine had sustained the pressure when the engine carried 165 pounds to the square inch for a considerable time preceding the accident. Sharkey had examined the crown sheet after the accident, and he, also, gave as his opinion that insecure rivet heads caused the collapse. But the effect of his testimony is practically destroyed, and he became a supporter of the theory of defense, when he testified that if the top row of flues had their bead turned away and were loose and warped after the accident, then it showed that there was no water on the top of the crown sheet when it collapsed. He testified that he did not find the beading thus turned, but that it may have been possible, notwithstanding what he saw there, that a knife blade could have been put in between the beading and the flue sheet of the top row of flues. Other evidence amply established that the beading upon that row of flues was turned. Aside from these two experts there was the testimony of a witness who had been an employe of appellant and had charge of the engines, when they came in, for the purpose of caulking up or tightening the rivet heads. This witness, Dolan, testified that he tightened up the rivet heads just before the engine went out upon the trip in question, and that they were very light and about forty of them were leaking. He also testified that he had notified one of appellant’s foremen of the condition of the crown sheet some five or six weeks before the accident. If the preponderance of the evidence could be said to sustain the conclusion that the crown sheet fell because of the giving way of these rivet heads, then the testimony of Dolan would be important, if credited, for it would show notice to appellant of a condition which resulted in the injury. But if the conclusion that the accident was caused by low water is established by a clear and" overwhelming preponderance of the evidence, then it is a matter of no importance that Dolan found the rivet heads light or reported that condition to appellant. In other words, if the rivet heads did not give way by reason of being too light, and if the accident did occur through another cause, then it does not matter whether Dolan’s testimony be credited or not. It is not argued, and could not well be, that if the water was allowed to get down below a part of the top of the crown sheet, the accident could have been averted by any sort of rivet heads. There were some grounds for discrediting the testimony of Dolan, but for the reasons indicated we think it unnecessary to consider them. The great preponderance of the expert testimony and well established physical facts, show,/that the cause of the accident was low water. Eleven expert witnesses testified that they had examined the crown sheet after the accident and that in their opinion the cause of its collapse was low water. Six of these witnesses were not connected with the appellant company and they were, respectively, two of them master mechanics of other railroad companies; two of them proprietors of boiler-making concerns; one a foreman of a boiler-making department, and one a retired boilermaker. The other five men were in some manner connected with' the appellant company. All of these expert witnesses agree substantially as to the well known indications of a crown sheet collapsed by over-heating, caused by low water. No material inconsistencies appear in their testimony. No one of them was impeached. Their testimony was supported by established scientific or physical facts. There appears no conflict in the testimony that, among the certain indications of an over-heated crown sheet by reason of low water, are a clean bluish color, without soot, on the bottom of the crown sheet where it sagged down; the warping of the beading upon the rows of flues exposed; corrugation of the crown sheet; the cupping or inverting of the rivet heads; and the stretching of the crown sheet. It is practically undisputed that all of these indications were here present. When a verdict is against established scientific facts, courts should have no reluctance in holding it to be lacking the support of a preponderance of the evidence. Decisions are not wanting where verdicts have been set aside upon precisely the same ground. Of such are Ill. Central R. R. Co. v. Butler, 69 Ill. App. 128, and Hudson v. R. W. & O. Ry. Co., 145 N. Y. 408. In the former case Mr. Justice Gary, speaking for this court, said, referring to indications similar to those appearing in this case, “ The conclusion is irresistible that the crown sheet was not protected by the water.” In that case, as here, there was evidence tending to support the plaintiff’s theory that insecure rivets caused the crown sheet to give way. But there, as here, the physical facts were positively against such theory. » In the latter case the New York Court said : “ All questions as to the weight of evidence are final in the General Term, and this court has no power to review the determination of that court with reference thereto. But where the evidence which appears to be in conflict is nothing more than a scintilla, or where it is met by well known and recognized scientific facts, about which there is no conflict, this court will still exercise jurisdiction to review and reverse if justice requires.” This court, unlike the New York court, has the power and the duty of passing upon the evidence to determine whether a verdict is against the manifest weight of it. There is other evidence, which we do not deem it necessary to discuss; evidence of inspection; of use by other employes of appellant of the engine in question; and of tests of the tensile strength of the rivets. Most of the questions raised upon rulings as to the admission of evidence are such as do not seem likely to arise in the form now presented upon another trial, and therefore it is not necessary to discuss them. Because the verdict is against the manifest weight of the evidence, the judgment is reversed and the cause is remanded.