3 Indian Terr. 635 | Ct. App. Ind. Terr. | 1901
The appellants have filed 10 specifications of error, but the agreement entered into between the parries at the trial in the court below reduced the question at issue as to defendant’s negligence to very narrow limits. Said issue is as follows: “It was agreed by the parties in open court that the court should submit to the jury, if he did submit the case, the sole question as to whether or not the failure to block its frogs was an act of negligence on the part of the defendant.” This was the only question, undoubtedly, that the court below considered in arriving at the conclusion from the evidence not to submit the case to the jury. It is a well settled rule that when, in the opinion of the trial judge, the evidence is not sufficient to sustain a verdict, and the court would be compelled to set the verdict aside, should one be returned by the jury, it is the duty of the court to take the case from the jury or direct a verdict. We have examined the evidence with same care, as set out in the bill of exceptions, to ascertain if the court below in directing a verdict acted in accordance with the foregoing rule; and we are satisfied, beyond question, that the evidence, taken as a whole, does not establish that the appellee was negligent in not blocking its frogs. Not only wras the preponderance of the evidence opposed to that view, but the great weight of the testimony was in opposition to that view. We deem it unnecessary to enter into the discussion, so much insisted upon by appellants, that a brakeman on a railroad train is more likely to tell the truth than a chief engineer, superintendent or vice president of a railroad. Suffice it to say that none of the witnesses are impeached in this case. The evidence clearly shows that a large majority of the railroads in the United States use the unblocked frog, and, while two or