(after stating the facts). The principal ground relied upon by counsel for appellant to reverse the judgment in this case is that the evidence is not legally sufficient to support the verdict, or to put it in a different form, that the court should have directed a verdict for the defendant. Under the provision of the Constitution that “judges shall not charge juries with regard to matters of fact but shall declare the law,” it has been repeatedly held that the circuit court has no power to determine the facts of the case and direct a verdict for either party, even though if returned for the opposite party it would set it aside as against the weight of the evidence. The only remedy in such cases is for the circuit court to promptly set aside verdicts that are clearly against the weight of the evidence. L. R. & Ft. Smith Ry. Co. v. Henson,
It is insisted, however, by counsel for defendant that the physical situation as conclusively proved to exist at the time plaintiff claims to have received her injuries so clearly overcomes the testimony of plaintiff as to render it of so little probative force as not to create a conflict in the testimony for determination by the jury. This leads us to consider the physical situation as it was shown to exist.
The testimony of the plaintiff, viewed in the light most favorable to herself, was that she was a large woman, five feet eight inches in height, weighing about one hundred and sixty-five pounds. That she sat on a cushioned seat in the middle of the car. That the shutter of the window to her seat was broken so that the sun shone in upon her. That she was sitting facing the front of the car in the direction the train was going. That to avoid the sun she turned her head towards the aisle and was looking out of a window on the opposite side of the car at the scenery, at the time of the accident. The regular schedule of the train was twenty-five miles per hour and this, taking into consideration the time for stops at stations, required the engineer to make thirty miles per hour between stations. The condition of the road bed near the place of the alleged injury was such that the engineer deemed it prudent to check the speed of Ms train, and the train was running at the rate of eighteen miles per hour when the derailment occurred. The water was standing over the fields at that point and stood within twenty inches of the top of the road bed. The road bed was not ballasted at that point and there was a low joint caused by the running of the trains over the soft road bed. TMs low joint in the opinion of the engineer was the cause of the derailment. Therefore, counsel for the defendant insist that, if the speed of the train had been checked suddenly the plaintiff would have been thrown forward and that her testimony to the effect that she was thrown against the window sill was in direct violation of a well known and established physical law. As above stated, in testing whether or not the court should have directed a verdict for the defendant, the evidence must be viewed in its most favorable light to the plaintiff. No accurate law of physics can be invoked to determine just how the plaintiff fell under the circumstances as detailed by her. The jury had a right to consider the action of the ear, the life and movement of the person of the plaintiff in determining whether her testimony was in conflict with the physical facts. They were not required to judge the issue upon any rule which might be applied to an inanimate object.
The engineer testified that when he put on the emergency brake it would take the brake only a few seconds to take hold of the cars. That the air would cause the brake to take effect on the cars first and then travel towards the engine. The jury might have found that when the engineer applied the emergency brake on account of the road bed being softened by the water the side of the car next to the window sank down in the road bed lower than the opposite side. The engineer also testified that the road was rough and uneven. The jury might have found on this account and on account of the road bed being softened by the water standing around it that the cars did not run along smoothly, but that there would be more or less swaying from side to side. They might consider any involuntary movement of the plaintiff’s body. When all these matters are taken into consideration, we do not think it can be. said that the plaintiff necessarily must have fallen forward and conld not have fallen back against the window sill at the time and in the manner she claims in her testimony.
All of the eminent specialists placed on the stand by the defendant say that they have examined the plaintiff thoroughly and that she is suffering from paralysis caused by hysteria, and not by a lesion of the spinal cord. They detail at length the physical and scientific tests to which they subjected her and which they say conclusively demonstrates that her paralysis was caused by hysteria, and they state that her injuries are not permanent. On the other hand, the physician who has attended the plaintiff for the most of the time since she received her alleged injuries testified in positive and direct terms that the paralysis was caused by an injury to the spine and that the plaintiff has never suffered from hysteria. He gives at length the scientific and physical tests from which he says he has reached this conclusion. . He gives it as'his opinion her injuries are permanent. Here again we may not invade the province of the jury, and the question of the credibility of these witnesses was solely one to be determined by the jury. Therefore, it can not be said, as a matter of law, that the verdict of the jury was without any substantial evidence to suppor it. See, Fidelity Casualty Co. v. Meyer,
The testimony in the' instant case, however, presents a different case to that passed upon by the Court of Appeals. It appears from the record in the Court of Appeals that the plaintiff was sitting next to the aisle and the court laid stress upon the fact that if she had been suddenly thrown sidewise against the window sill she would not have been struck in the side and back below the ribs, but much higher up at or about the shoulders. The plaintiff says that she testified in the Federal court that she was sitting in the middle of the seat just as she did in the present case. She claims that the record of her testimony in the Court of Appeals was incorrect. But be that as it may, the jury heard her testimony and were the sole judges of her credibility and had the right to pass upon the discrepancies, if any, in her statements. Moreover, the condition of the road bed is gone into more in detail in the present case and the physical situation as it existed at the time of the accident is more particularly described, as far as we can tell by reading the opinion of that court.
Counsel for the defendant insist that the court erred in not giving instruction numbered five. In it the court was asked to tell the jury that if the jar which the plaintiff claims to have caused her injury was not greater than that caused by the train stopping at a station in the usual and customary manner the plaintiff could not recover. This proposition was fully covered by instruction numbered six, given for the defendant. In this the court told the jury that, in order to entitle the plaintiff to recover, she must have shown some unusual stopping of the train which caused her to be thrown violently against the edge of the window, striking her back and left side and from which her spinal cord was injured.
The instructions given by the court covered fully the respective theories of the parties to the suit, and the judgment will be affirmed.