O'Brien v. Chicago & Northwestern Railway Co.

Newman, J. The question of the credibility of witnesses and testimony is always for the jury. So, if it was competent, as matter of law, for the jury to believe the plaintiff’s testimony, then the case should have gone to the jury. There is no such rule of law as that -one. who has previously made a statement, even purposely false, but out of court, of the matter in controversy, shall not be believed when he testifies, under oath and in court, to a different version of the same matter. It is considered that some element bf credibility is imparted to the statement of the witness by the confirmation of his oath. There is no rule of law which declares that the sworn testimony is neutralized by the former unsworn statement, although, practically, its value is said to be impaired and may be entirely destroyed; but whether it is so impaired or destroyed is a question for the jury and not for the court. It relates to the question of the weight or credit to which the testimony is entitled, which is always a question for the jury; for the law recognizes that even a person of doubtful veracity may have testified the truth in the particular case. And the question on which side the testimony preponderates is also always for the jury. No witness is, as matter of law, altogether discredited because several witnesses have testified to a version of the affair which is inconsistent with Ms testimony. The preponderance of the proof may be with the one witness. Preponderance may not go with numbers. This has often been held.. True, it is not required that a contention which is sup: ported only by a mere scintilla of evidence, or which is unsupported by testimony which, if believed, would justify a verdict in its favor, should be submitted to the jury. Rut no case is known which holds that the affirmative testimony of one witness, and he a party and contradicted, which covers all the material points of the party’s sufficient pleading, is a mere scintilla of evidence, or, as matter of law, inca [344] pable, if believed by the jury, to support a verdict. Boris it important, at this point in the trial, whether the trial judge credits the witness or testimony. If all the material allegations of a sufficient pleading are supported by the affirmative testimony of one witness, there is a question for the jury. But if a verdict be returned which the court deems to be-insufficiently supported by credible evidence, it should then,, in the exercise of a fair judicial discretion, set aside the verdict and grant a new trial. The trial court, at this point,, has a large supervisory power over the verdicts of juries, and should exercise it fully, for the promotion of justice. This is believed to be the doctrine and result of our cases. In Jones v. C. & N. W. R. Co. 49 Wis. 352, the court say: “ If the plaintiff gives any evidence to support his claim, the-case must be submitted to the jury, although, in the opinion of the trial -judge, it may be insufficient to sustain a verdict,, or the decided weight of evidence is for the defendant. In such case this court has repeatedly said that it is the duty of the court to submit the questions of fact to the jury, under proper instructions, and take their verdict thereon.” The cases to that effect are there cited. In Bouch v. Enos, 61 Wis. 661, the court say: “It is the province of the jury to determine, not only the credibility of witnesses and all disputed facts, but all conflicting inferences reasonably drawn from undisputed or admitted facts.” In Kruse v. C., M. & St. P. R. Co. 82 Wis. 568, the court say: “The long-established rule of this court is that a verdict for defendant should only be directed when the plaintiff’s evidence, under the most favorable construction it will reasonably bear, including all reasonable inferences from it, is insufficient to justify a verdict in his favor.” In Larson v. Eau Claire, ante, p. 86, the court say: “The remedy against a verdict, on the ground that it is against the preponderance of evidence, is by motion for a new trial, 'which is addressed to the discretion of' [345] the court, with the exercise of which this court will not interfere, except in cases where it is quite clear that such discretion has been abused.” It is evident, from the reasons stated by the trial judge, that he directed the verdict for the defendant on the ground that the plaintiff’s contention was not supported by a preponderance of the evidence. It is clear, upon the cases cited, that that question was for the jury, and not properly to be considered by the court until after verdict and on a motion for a new trial. It might well be trusted that the jury would, with proper instructions, find a verdict which should be in accord with the preponderance of the evidence. By the Court.— The judgment of the superior court of Milwaukee county is reversed, and the cause remanded for a new trial.