118 Mo. App. 611 | Mo. Ct. App. | 1906
The plaintiff for his cause of action alleges: “That on or about December 13, 1901, at 6:41 a. m., he boarded, as a passenger, one of defendant’s cable cars going west at Twelfth and Main streets; that the travel on said line at that hour of the day was always heavy, which was a fact well known to defendant; and that defendant carelessly and negligently, and in disregard of its duty to properly provide for the travel on its said line, was, at and about said time, operating such few trains over its said line that each of its trains and the platforms thereof were greatly overcrowded, and plaintiff was compelled to take passage ... on a greatly overcrowded . . . train of defendant, and was compelled to stand on the platform of said train ... as its overcrowded condition prevented him from talcing a seat inside the car; that when said train had gone about one hundred feet
The cable car in question was being operated west along Twelfth street. After passing over Main street it stopped to let off and take on passengers. Plaintiff stated that he went aboard at that point but was unable to get inside the car by reason of its overcrowded condition; that he took a position on the platform of the front car, which was also overcrowded; and that he was standing with his back against the car holding with his left hand to a bar, when the car gave a jerk which caused other passengers to fall against him, and he was thereby knocked off onto the street and injured. From Main street west there is an upward grade. Plaintiff stated that the jerk which caused him to be knocked off the car was of great violence and was unusual. One other witness, Carrie G-ebhart, testified that the jerk was of great violence and unusual, and such as she had never observed before on the cable cars. Other witnesses, who were passengers on the platform at the time, were introduced by defendant and stated that the jerk was not unusual. George Ham, who had been a gripman on defendant’s cable cars, explained that jerks were unavoidable in the operation of said cars, owing to the fact that they could not be operated with taut cables, but must be operated with the cable in a loose condition; that the jerks mentioned were the result of the cars, after starting from a given point, taking up the slack in the cable; and that after the grip which attached the car to the cable is applied by the operator the speed of the car is greater than that of the cable, and that in adjusting itself to the speed of the cable, there being a slack in the latter,
The plaintiff’s injury occurred at about 6:40 a. m. It was shown that about that hour, and the corresponding hour in the afternoon of each day, the travel over defendant’s said line of cable road was heavy and that the cars were greatly croAvded. The testimony of the witnesses varies slightly as to the usual length of time between the passing of the different cars at the time of day mentioned.- Some stated that it was from four to five minutes; but according to Carter, the superintendent, the schedule time was two and one-half minutes.
The finding and judgment were for the plaintiff and the defendant appealed.
The plaintiff alone testified that he was a passenger on the car in question and that he was knocked off by persons falling against him as the result of a violent and unusual jerk of the car. He, however, contends that he is supported by the evidence of the gripman, who testified that when he started his train there were no passengers on the sidewalk or on the street there ready to get on the car, and he looked back, and there was no one running towards the car or going to get on the car Avhen he started; and by the evidence of the conductor to the same effect. This evidence only goes to show
Five witnesses testified that he was not a passenger on the car at all, but that he fell and was injured in attempting to board the car while it was in motion. The reputation for truth of these witnesses was not impugned. And we can conceive of no motive which would induce them to commit so glaring a perjury as they must have done if their statements were untrue. Such a conclusion does violence to any sort of faith in the truth of human testimony. Observation teaches us that men are swayed from the truth by motives, such' as gain, passion or prejudice, but in the absence of such motives the law presumes that the witness speaks the truth. If plaintiff was on trial for perjury by reason of his sworn testimony in this case, the evidence of the counter testimony introduced by the defendant would be sufficient to predicate a verdict of guilty by a jury, and that would be upheld by the courts as sufficiently established by the evidence.
That the testimony was overwhelmingly against plaintiff cannot be truthfully denied. But- it is conceded that under our practice, for that reason alone, this court would not be justified in interfering with the verdict of the jury. But, if the court believes, and such a belief is unavoidable, that the verdict of the jury was the result of passion or prejudice and that the instructions of the court were disregarded by the jury, it- is our bounden duty to set it aside. That we have the authority to do so is unquestionable. In Spohn v. Railroad, 87 Mo. l. c. 84, the court says: “We recognize and affirm the right of the jury to determine for themselves the weight of evidence and the credibility of witnesses. Trial courts may justly and rightfully award new trials, where this court cannot, and has no right to say it was error not so to do. . . . Reluctant as we are, and should be, to interfere in such matters, as this record now stands, we can come to no other conclusion than this, that the verdict is the result of passion or prejudice, or that' the instructions were wholly disregarded.” And where the preponderance of the evidence against the verdict is so strong as to raise a presump1tion of prejudice, corruption, or gross negligence on the part of the jury, the appellate court has the right to interfere with such verdict. [Price v. Evans, 49 Mo. 396.]
The Supreme Court, in construing the constitutional right of trial by jury, in speaking of the duty
We held in a former opinion that the court committed error in refusing the defendant’s demurrer to the plaintiff’s case. The plaintiff filed a motion for rehearing, which was granted in order that the case might be more thoroughly considered. After having done so, we are of the opinion that the court was in error in not sustaining defendant’s motion for a new trial. The cause is reversed and remanded.