Kohler v. Pennsylvania R. , 135 Pa. 346 ( 1890 )

Opinion,

Mr. Justice Mitchell :

The plaintiff testified that when he heard his train coming ho went out to the station platform, looked to the east and listened, and, finding no indication of a train from that quarter, he walked in a diagonal or “ angling ” direction, across the nearest track, to meet his train coming from the west. The space between the tracks was planked for some distance in front of the station, for the convenience of passengers who were expected to use this way of getting to and from the ears. There was no presumption of negligence, therefore, in plaintiff’s crossing the track. The witnesses agree there was no other way to his train. Plaintiff further testified that the engine of his train was in front of the station when he started, and by the time he reached his point, the front steps of the second passenger-car, the train was standing still. It took him 18 seconds to walk the intervening distance. From the station there was a view east along the track for about 450 feet; and a train going at fifteen miles an hour, the speed of the freight train as testified to by some of the witnesses, would cover that distance in about twenty seconds. It was not necessarily negligent to start for his train before it had come to a full stop. The station was what is called a flag station, where stops are made only when called for, and were apt to be short. Whether or not the slowing up of the train, and the other circumstances, justified the plaintiff in crossing the track when and as he did, was not sufficiently clear to be decided against him as a question of law. So far as his own testimony was concerned, therefore, plaintiff was entitled to go to the jury.

Plaintiff next called Buckwalter, and it was upon his testimony that the learned judge directed a verdict for defendant. It is true that he testified that when he got to the car door his train was still moving, and that the freight train was then passing ; thus tending to show, as the learned judge expresses it, “ that Kohler had crossed the north track, and taken a dangerous position on the narrow space, before the passenger train had arrived at the station and stopped.” But Buckwalter had previously testified that, “ just about the time the train stopped, there was a freight train coming west. I said to Mr. Thomas, .... or made a remark something to that effect; and he says, ‘ Oh, no; for the train is on time.’ ” The expression “ coming west ” would not naturally mean already partly passed, and the remark to the conductor and his reply are certainly inconsistent with the idea of a moving freight train then before their eyes. The expression selected by the learned judge may have been the clearer and more positive statement of Buck-waiter’s recollection. That the learned judge could tell much better than we can. But the two expressions are apparently inconsistent. The exact sequence of startling events crowded into a brief period of time, and'productive of excitement and confusion, is often a matter of doubt, even in the most honest and accurate memory; and in the reiterated narration of such occurrences, in chief and on cross-examination, the most candid witnesses sometimes fall into apparently confused and inconsistent statements. The doubt resulting therefrom it is the province of the jury to settle. Buckwalter’s testimony presented such a case.

But, irrespective of the apparent doubt upon Buckwalter’s evidence, the plaintiff himself had made a case for the jury clear of contributory negligence. The effect of that case was not completely overthrown by the variance in the testimony of another witness, even though such testimony had been direct and positive. If the plaintiff’s own testimony had shown that lie was negligent, he could not complain if the court took his case as he made it, although another witness had done better for him than he had for himself; but, where his own testimony made out a clear ease, the contradictory testimony of another witness would not destroy it as a matter of law, oven though such witness had been called by himself. Possibly the jury might believe plaintiff’s account rather than that of his witness, and he was entitled to have them do so if they would.

If, on the whole evidence in behalf of the plaintiff, his own testimony is overthrown by that of his own witnesses, in such number and weight that the court could not support a verdict in his favor, then it would become the duty of the court to direct a nonsuit or a verdict. But such case should he clear and without doubt. If there is a doubt, it must go to the jury; and the remedy for a perverse verdict, or one against the weight of the evidence, is to set it aside and grant a new trial,—a remedy which we take occasion to say should he freely and firmly exercised, especially in those classes of cases which are apt to be affected by local or narrow views and interests, or by popular sympathies or prejudices. In the administration of justice between party and party, the duties and powers of the trial judges come much closer to the individual, and in that sense are more important to him, than our own. Our duty is to administer justice in that broader scope that is involved in the preservation of the stability of legal rules, and uniformity in the interpretation' of the law. ' It is ourg to dejelare the law, but the duty to see that juries 'obey it, is upon the judges who preside at trials, and the power to enforce such obedience is one which should be unflinchingly exercised,by the appropriate method.

In the present case, there was strong evidence on the part of the defence that the plaintiff knew, or must have known, if he used his senses, that the freight train was coming, and, perhaps fearful that his train might not wait, crossed in front of the moving train to the dangerous position in which he was struck.' There was nothing in the situation which in any way justified such a course, and, if the jury believe that that was the real fact of the occurrence, they should find for defendant.; .and if they ought but do not do so, the judge has the remedy in his own hands. As the ease now stands, however, it should go to the jury.

Judgment reversed, and venire de novo awarded.