49 Barb. 583 | N.Y. Sup. Ct. | 1867
None of the exceptions taken to the rulings or charge of the court, I think, are well taken. When the plaintiff rested, there was, I think, some evidence given by the plaintiff tending to make out a case for the jury, and the judge would hardly have been warranted in directing a nonsuit, though the evidence was weak and slight. At the close of the case, the motion for a non-suit was renewed, and if it had been then- granted, such ruling would not have been improper, and might have been sustained. But there is such contrariety of opinion among the judges, in respect to the propriety or expediency of granting nonsuits in <• this class of actions, that, I think, the learned judge might well hesitate to do so, and trust to the jury to dispose of the case in such manner as to obviate all question on this point, and save further litigation, as they clearly would have done,
But upon the merits, I am not satisfied with the verdict. I think it not warranted by the evidence. There is no pretense, or ground for pretense, that there was any negligence on the part of the defendants which could sustain the action, except in the omission of the engineer or person in charge of the defendants’ locomotive to ring the bell, or sound the whistle at the crossing of Alabama street. When the plaintiff rested, it appears, from the evidence of the plaintiff himself, that he had heard no bell or whistle before he was struck by the engine, and another witness, at a short distance from the plaintiff when he was struck, also testified that he heard no-bell. This is the slightest possible evidence, scarcely sufficient, uncontradicted, to take the case to the jury. At such a point, when trains were going out and running in, and bells ringing almost constantly, the ringing of‘a bell or sounding of a whistle would not be likely to attract any particular attention, and probably there were one hundred persons in Buffalo within the sound of the bell if rung, or within hearing of the whistle if sounded, who might have given the same testimony with equal truth.
The testimony on the defense, upon this point, of the engineer, on the contrary, that the whistle was blown and the bell rung, is positive and unqualified. He testified that he saw the flagman at the intersection of the road, and blew the whistle twice to attract his attention, and getting no motions from him to go on, he whistled again twice, and reversed the engine to stop ; that the flagman then gave him the motion to come ahead; that he then did so, ringing the bell all of the time with his left hand; that the bell was rung all the
The testimony of these two witnesses is clear, positive and circumstantial; they could not be mistaken. Their testimony is true, or they both committed willful and corrupt perjury.
I think the jury, so far as any thing to the contrary appears in this case, were bound to give credit to their testimony. It was'not contradicted ; it was really no contradiction for the plaintiff to say he did not hear the whistle or bell. They were not impeached, or in any way discredited. The positive testimony of an unimpeached, uncontradicted, witness cannot be discredited, or disregarded arbitrarily or capriciously by court or jury. (Lomer v. Meeker, 25 N. Y. Rep. 363.)
If juries are permitted to discredit or disregard such testimony, there is no safety in the administration of justice, and parties might just as well let the result of a litigation abide the cast of a die, or a game of chance. It belongs to a jury, I admit, in considering the weight of evidence, to pass upon
For judicial purposes, all witnesses stand upon a par, and must be believed in their testimony, unless discredited by the inconsistency, incredibility or improbabilities of their statements, on cross-examination, or otherwise contradicted by other witnesses, or impeached in respect, to their general character for integrity or truth. Nothing of that kind was done or attempted in this case, and for aught that appears in this case, the two witnesses, Giles Hosmer. and George Mercer, appear and stand as fair and as credible, in all respects, as witnesses, as any men in Buffalo.
The testimony, besides, tends to show'that the plaintiff was struck by the engine in attempting to cross the defendants’ track about 150 feet east of Alabama street. If so, he was where he had no right to be, and, as the judge instructed the jury, would not in such case be entitled to recover.
Upon the whole, I think, there should be a new trial; but as it is upon the ground that the jury have found against the defendants upon the evidence, it must be upon the payment of costs by the defendants of the former trial, and the costs of the appeal to abide the event of the action.
New trial granted.
Daniels, Marvin and E. D. Smith, Justices.]