Baldwin v. Grand Trunk Railway Co.

Grant, J.

(after stating the facts). 1. The appellant moved for a new trial on the ground that the verdict was contrary to the evidence. The court refused to grant it, and appellant duly excepted. While it is unpleasant to an appellate court to review the action of the court below in refusing to grant a new trial for the reason alleged, yet the statute imposes the responsibility, which we cannot evade. The plaintiff’s case is based upon his own testimony alone. No one saw him fall. He made no complaint for over two years, but waited until the station agent had removed from the State; until, in the due course of business, the ticket sold had been destroyed; and then commenced action without having made any claim to the railroad company to give it an opportunity to-examine into the case, or settle if it chose. He was an intemperate man, and was at the time of the trial under bonds to keep the peace. The manner of the accident, as described by him, is improbable. The train had stopped, according to his own testimony. He stood upon the lower step, ready to alight. The train consisted of five cars, two of which were sleepers, — a heavy train. The train was equipped with Gould couplers. Five experienced men testified that it would be impossible to start that train with a jerk sufficient to throw a passenger standing upon the lower step and in the act of alighting. His own version of the accident is as follows:

“When the train stopped, he says, ‘God d — n it, get off from here !’ The train stopped right in front of the depot. When he made that remark, I went to get off. He • shook his lantern this way [indicating] for the engineer to go ahead.

“ Q. What happened then ?

“A. I fell off. I got off in some way. I fell, anyway. I suppose it was the jerk from the engine when he pulled *421 ahead that made me fall. ' It was a sudden jerk. I was on the bottom step of the car, holding on to this handle on this side of the car. I had some glasses in my other hand. I couldn’t tell how I did fall. When I got. off I was headed towards Port Huron. When I got up I was looking towards Detroit. I must have turned a somerset.”

Plaintiff swears positively that one Donohue was conductor, and one Duval the brakeman, of the train. He knew Donohue well, and had known Duval from his boyhood. There was no chance for him to be mistaken. He swore that these were the conductor and brakeman of the train, and that both were present when he was thrown. It is conclusively demonstrated by the records of the company that these two men were not upon that train that night. They were part of another train crew upon an earlier train to Detroit that day. The crew of the train upon which plaintiff claims he was, and by which he was injured, were one Chandler, conductor; Cooper, brakeman; Kelly, baggageman; and Fuller, engineer. These were present in court before plaintiff took the stand as a witness. He knew them, and saw them in the courtroom. Donohue and Duval were not there. After plaintiff had testified so explicitly and positively that these two were the ones in charge of the train, the defendant was able to produce them before the trial ended, and they testified that they were not upon the train, and that no such -occurrence ever happened while they were in charge of any train. The four men comprising the train crew on the night plaintiff claims to have been injured were all produced and sworn, and all testified that no such occurrence ever took place. We then have this plaintiff contradicted by six men, and by the unimpeached record made at the time. It is not too harsh to say that such verdict is based upon something else than the reliable testimony in the case, and it was the duty of the court to promptly set it aside, and grant a new trial.

In Schmeltzer v. Railway Co., 80 Minn. 50 ( 82 N. W. 1092 ), plaintiff claimed to have been thrown by the *422 sudden starting of the car while he was entering and was upon the steps. The testimony of the plaintiff and his witnesses as to the manner of the fall and the starting of the car was stronger than in this case. The supreme court reversed the verdict, and granted a new trial, because the testimony was so indefinite and uncertain; and in doing so said:

“We share the respect of' the learned trial judge for the jury system, and our respect therefor is only shaken or lessened when confronted with palpably unjust verdicts, —verdicts which find no support in the evidence, and can only be accounted for on the theory of bias and prejudice.”'

See, also, Brown v. Paper Co., 65 N. J. Law, 111 ( 46 Atl. 756 ).

2. In view of a new trial, it is important to determine one other question: What relation did plaintiff bear to the defendant while on its train ? He contends, and bases his-declaration upon the theory, that he was a passenger, entitled to all the rights and privileges of a bona fide passenger, and that defendant is liable in damages to him for any injury caused by its negligence. The defendant contends that plaintiff was a trespasser, that he had no right to enter this train for carriage to New Haven, and that the defendant would only be liable to him for gross or willful negligence.

If the defendant’s train had been scheduled never to stop-at New Haven, — the plaintiff’s home station, — there would be great force in the contention of the defendant, and many authorities fully sustain it'. But it is conceded, that the defendant’s train did stop sometimes at New Haven, and always stopped when it had passengers from Detroit to that point. We think a passenger knowing this-fact would have a right to enter the train hoping that it might stop there, and that such passenger could not b& placed in the position of a trespasser until the conductor had notified him that the train would not stop there, and that he must stop at some other station before reaching New Haven, or go to the next station beyond. If he had *423 failed to comply with any such requirement on the part of the conductor, he might then be put in the position of a trespasser.

Judgment reversed, and new trial ordered.

Hooker, Moore, and Long, JJ., concurred. Montgomery, C. J., did not sit. .