Cole v. Detroit Electric Railway

Grant, J. (after stating the facts). The verdict and judgment have no other foundation than the testimony of the witness Mabel Perry. If the testimony given by her at the inquest is true, the defendant is not liable. If her testimony given upon the trial be true, not .only is the defendant liable for damages, but the motorman is liable to indictment for manslaughter, • — ■ for conduct wholly regardless of human life. If the versions of this accident given by this witness on the two occasions are directly contrary to each other, and there is no reasonable explanation for her change of testimony upon the trial from that upon the inquest, she is unworthy of credence, and a verdict based thereon ought not to stand. To find a verdict for the plaintiff, the jury must have wholly disregarded the testimony of the six disinterested witnesses who testified to what Mabel said at the inquest, and the positive and unequivocal testimony of the motorman that the deceased was not upon the track in front of the car. It is important, therefore, to consider the character of the impeach [125] ing testimony. There is no room for holding that the six witnesses are mistaken in their testimony. The material part of Mabel’s testimony was written out by the coroner, and read to and signed by her. The stenographer wrote out his minutes by questions and answers, and swore to their correctness. Four other witnesses swore positively to the same effect. The verdict cannot be sustained upon any other theory than that these seven witnesses testified falsely. I find it impossible to disbelieve them. They are unimpeached by anything in this record. The witness herself does not deny their statements. It is therefore established beyond controversy that she did so testify at the inquest, when, as she admitted upon the trial, the occurrence was fresh in her mind. Besides, the version given by her at the inquest is entirely natural, wliile that given upon the trial is not. It is unnatural and improbable that the motorman started his car with the girl standing within a few feet and directly in front of him, and in his plain sight. I cannot consent that persons be deprived of their property or liberty upon such a record. The declaration is based upon gross, wanton, and reckless negligence. It can be sustained upon no other theory. Yet the jury, by wholly disregarding the testimony of the seven witnesses, and adopting the version of a witness who two years before, and at the time of the accident, gave an entirely different version, and one which entirely exonerated the defendant from any negligence, found that the motorman was guilty of the grossest negligence. The two versions are utterly irreconcilable. In a case where the liability of the defendant depended upon the testimony of only one witness, and he was contradicted by several other disinterested witnesses, and, as in this case, gross negligence was charged, and the court refused to set the verdict aside, we said: “The refusal to grant a new trial upon a verdict ren- . dered upon such evidence is very close to an abuse of judicial discretion.” Brassel v. Railway Co., 101 Mich. 5, 13 (59 N. W. 426, 428). [126] We also there held that it was impossible to read the record without coming to the conclusion that the jury utterly ignored the clear weight of the evidence in the case. So, also, in Whipple v. Railroad Co., 130 Mich. 460 (90 N. W. 287), we said: “But if it should be held that it was not error to submit the case to the jury, their verdict was so palpably unjust and at variance with the great preponderance of evidence that the court should not have denied a motion for a new trial.” The language in those cases is especially applicable to this. The judgment is reversed, and new trial ordered. Hooker, C. J., and Montgomery, J., concurred with Grant, J. Moore, J. I concur in the result reached by Grant, J.