227 Pa. 10 | Pa. | 1909
Opinion by
January 3, 1910:
When this case was here before (Buck v. McKeesport, 223 Pa. 211), we said of it that it appeared to be close on the facts. This we now repeat, but cannot say that, under the evidence, the negligence of the defendant and the contributory negligence of the plaintiff were not for the jury. It is earnestly and plausibly urged by the learned counsel for appellant that, in view of the discrepancies in the testimony of the plaintiff and in that of the two witnesses called by her to support her allegation of negligence, there ought not to have been a recovery, and with almost persuasive force we are asked to sustain the first and second assignments of error. Our finding as jurors might have been different, but for this reason alone we cannot disturb the-verdict, for it is only when, under all the evidence, but one finding is to be drawn from it, that a different one cannot be permitted to stand. This is not the case here presented, for even in the inconsistent and discrepant statements of the plaintiff and her two material witnesses there was sufficient, if believed by the jury, to justify the finding that the cause of the injury was the stone pile negligently left in the street by the city, and the first and second assignments are therefore overruled.
Mrs. Marshall Mains was a material and most important witness for the defendant as to the cause of the accident. She saw it, and, according to her testimony, the buggy “tipped over” before it reached the stone pile. There had been two previous trials of this case, and, on the cross-examination of Mrs. Mains on this third and last trial, counsel for appellee were permitted, under objection, to ask her whether, at the time her husband was subpoenaed to appear as a witness at the second trial, she had not said to him, in the presence of the officer serving the subpoena, “You did not tell the right story at the last trial, and you have to tell the right story this