73 Ark. 377 | Ark. | 1904
(after stating the facts.) Appellant contends, first, that there is no evidence to sustain the verdict. The reason assigned is because plaintiff’s testimony is shown to be so clearly false that a finding for her on her evidence indicates prejudice on the part of the jury. It is very true that plaintiff was flatly contradicted in many particulars and by several witnesses. It is also true that her character for truth and morality was impeached by several witnesses. Still, the jury were the sole judges of the weight of the evidence and the credibility of the witnesses. Under long established rules of this court, we are not authorized to set aside a verdict because there is a conflict in the evidence, however sharp, and because the verdict seems to us to be against the decided preponderance of the evidence. We will not invade the province of the jury to settle disputed questions of fact. St. Louis, I. M. & S. Ry. Co. v. Wilson, 70 Ark. 136; St. Louis, I. M. & S. Ry. Co. v. Osborn, 67 Ark. 399; St. Louis & S. F. R. Co. v. Kilpatrick, 67 Ark. 47; Catlett v. Ry. Co., 57 Ark. 461.
No matter how untruthful or immoral the plaintiff may have been, there is no doubt whatever that she was severely and seriously injured. How was it done? ■
Appellant, while conceding the injury, introduced witnesses to show that it was not caused in the manner stated by apellee. Witness Hooker, who claims to have seen appellee jump from the train after it had passed Camden station, and near what is called in the record “the C. & A. crossing,” says: “She didn’t fall, to my knowledge.” Other witnesses (McGill and Gipson) say that appellee told them that when the train stopped at the C. & A. crossing she got off, and in turning to walk off of the embankment, which was three or four feet high, she slipped on the. grass, wet with dew, and fell to the ground, but was not hurt. Thus was presented to the jury by appellant’s only eyewitness", whom counsel designates as “a passenger without interest of even a remote degree,” the theory that appellee jumped from the train but did not fall at all. Then, by two other witnesses, who were employees of appellant, the theory that, according to appellee’s own statement, she did not jump from the train, and that she fell after getting off, but was not hurt.
Appellee’s own account of the matter was that she was thrown violently from the train by a sudden jerk, falling on her shoulder and side; that she was confined to her bed by reason of the injury for over two months; that she could not raise up to take a drink of water when in bed; was badly hurt in shoulder, neck, breast, lungs, and back, and that these were still affected at the time of the trial.
The testimony of the attending physician, who waited upon her several weeks, was to the effect that he found her suffering considerable pain from soreness in her neck, chest and back, and that she could not raise her head without putting her hand back of it, and that she had a hemorrhage from her bowels, indicating internal injury, and that, from the character of the injury, it came near breaking her neck. He gave it as his opinion that “a fall on the head from a train would cause the injury, while a fall from slipping on the grass walking along would not. The testimony of the lady with whom appellee stopped during her illness showed that, when appellee went to her house after the injury, she put her to bed where she remained for several weeks; that she suffered great pain, complaining of her head, neck, shoulders and side; that she continued to suffer even up to the time of the trial, not being able to sit up a whole day at a time.
The testimony of an Osteopathic physician who had examined appellee about three or four weeks before the trial showed that he found two of appellee’s vertebrce slipped to one side, making a crooked backbone pressing on the spinal cord, and making the health bad; that it might have been done by a fall, or it might have been done by an injury to the nerves that would make a contraction of the muscles and draw the bone out of place, when they had not been thrown out by the fall. But other evidence showed that appellee had been in good health up to the time of the injury, and had been in bad health ever since.
From this testimony the jury doubtless concluded that the theory of the injury as put forth by appellee was entirely consonant with the truth, notwithstanding the palpable contradictions of her evidence and the severe impeachment of her character, and the jury also doubtless concluded that the manner of the injury detailed by her was credible and plausible, while the theory of the manner of the injury as put forth by the evidence for appellant was inconsistent with the undisputed character of the injury itself, and wholly unreasonable. We could not say that such a conclusion of the jury was unwarranted. The gravamen of this controversy was the injury of appellee through appellant’s negligence. If this was established, appellee maintains her cause of action.
Second. The court did not err in overruling the motion for new trial on the ground of newly discovered evidence. The testimony of Alexander was only to show that he was not the conductor on the train at the time appellee was injured. That could have been only cumulative of the testimony of Thompson, who testified that he was the conductor of that train, and not Alexander; also of the testimony of several other witnesses who testified that Thompson, and not Alexander, was the conductor. Furthermore, the testimony was not material, further than for the purpose of impeaching the testimony of appellee, and in this regard would have been only cumulative of much other evidence. The testimony of witness Mrs. Kilmer was not newly discovered, but is shown to have been known to appellant before the trial began. Besides, the testimony of this witness was also only cumulative. The witness Gipson, whose affidavit was attacked, was a witness at the trial, and the affidavit as to what the train register showed would have been only cumulative of the abundant evidence tending to show that Thompson, and not Alexander, was the conductor of the train at the time of appellee’s injury, and thus would have contradicted her evidence on this point. Railway Co. v. Dobbins, 60 Ark. 481; Holt v. State, 47 Ark. 196.
Third. The appellant contends that appellee was guilty of contributory negligence, because she says in one place in her testimony that the train “was still as long as three minutes” after it stopped at the station before she got out of her seat. She precedes and follows this declaration with a statement that she “could not tell how long it had been still,” showing that it was a mere matter of opinion on her part. But other evidence tends to show that she hurried out as soon as the train had stopped.
The jury settled the question of contributory negligence in favor of appellee, and we see no reason to disturb the verdict.
Affirm.
