128 Mich. 417 | Mich. | 1901
(after stating the facts).
“When the train stopped, he says, ‘God d — n it, get off from here !’ The train stopped right in front of the depot. When he made that remark, I went to get off. He • shook his lantern this way [indicating] for the engineer to go ahead.
“ Q. What happened then ?
“A. I fell off. I got off in some way. I fell, anyway. I suppose it was the jerk from the engine when he pulled*421 ahead that made me fall. ' It was a sudden jerk. I was on the bottom step of the car, holding on to this handle on this side of the car. I had some glasses in my other hand. I couldn’t tell how I did fall. When I got. off I was headed towards Port Huron. When I got up I was looking towards Detroit. I must have turned a somerset.”
Plaintiff swears positively that one Donohue was conductor, and one Duval the brakeman, of the train. He knew Donohue well, and had known Duval from his boyhood. There was no chance for him to be mistaken. He swore that these were the conductor and brakeman of the train, and that both were present when he was thrown. It is conclusively demonstrated by the records of the company that these two men were not upon that train that night. They were part of another train crew upon an earlier train to Detroit that day. The crew of the train upon which plaintiff claims he was, and by which he was injured, were one Chandler, conductor; Cooper, brakeman; Kelly, baggageman; and Fuller, engineer. These were present in court before plaintiff took the stand as a witness. He knew them, and saw them in the courtroom. Donohue and Duval were not there. After plaintiff had testified so explicitly and positively that these two were the ones in charge of the train, the defendant was able to produce them before the trial ended, and they testified that they were not upon the train, and that no such -occurrence ever happened while they were in charge of any train. The four men comprising the train crew on the night plaintiff claims to have been injured were all produced and sworn, and all testified that no such occurrence ever took place. We then have this plaintiff contradicted by six men, and by the unimpeached record made at the time. It is not too harsh to say that such verdict is based upon something else than the reliable testimony in the case, and it was the duty of the court to promptly set it aside, and grant a new trial.
In Schmeltzer v. Railway Co., 80 Minn. 50 (82 N. W. 1092), plaintiff claimed to have been thrown by the
“We share the respect of' the learned trial judge for the jury system, and our respect therefor is only shaken or lessened when confronted with palpably unjust verdicts, —verdicts which find no support in the evidence, and can only be accounted for on the theory of bias and prejudice.”'
See, also, Brown v. Paper Co., 65 N. J. Law, 111 (46 Atl. 756).
If the defendant’s train had been scheduled never to stop-at New Haven, — the plaintiff’s home station, — there would be great force in the contention of the defendant, and many authorities fully sustain it'. But it is conceded, that the defendant’s train did stop sometimes at New Haven, and always stopped when it had passengers from Detroit to that point. We think a passenger knowing this-fact would have a right to enter the train hoping that it might stop there, and that such passenger could not b& placed in the position of a trespasser until the conductor had notified him that the train would not stop there, and that he must stop at some other station before reaching New Haven, or go to the next station beyond. If he had
Judgment reversed, and new trial ordered.