Kelley v. Lehigh Valley Railroad

84 A. 754, 236 Pa. 110, 1912 Pa. LEXIS 721

• Court: Supreme Court of Pennsylvania
• Decided: April 15, 1912
• Docket: Appeal, No. 253
• Status: Published

Opinion

Opinion by

Mr. Justice Mestbezat,

On June 14, 1909, Albert L. Kelley, the plaintiff, purchased a ticket at Pittston for Laceyville, a station on the line of the defendant company’s road beyond Tunkhannock, and boarded a train for his destination. When the conductor examined the ticket he informed the plaintiff that the train did not stop at Laceyville and that he must get off at Tunkhannock, and take a later local train for Laceyville. He punched the ticket, made an endorsement on it, and handed it back to the plaintiff. These facts are not in dispute. The plaintiff claims that as he was leaving the train at Tunkhannock he was assaulted and severely injured by the defendant’s brakeman while descending the steps to the ground. He alleges that he was struck on the back of the head and pushed from the train, that his right ankle joint was sprained, the outer ligaments of the ankle were ruptured, and that he was otherwise injured. He further claims that he was assaulted by the brakeman after he had passed from the steps of the car to the ground and while he was still near the train.

The defendant admits that the plaintiff was required to leave the car at Tunkhannock, but alleges that he was not assaulted nor forcibly ejected, that he was intoxicated and, as he was descending the steps of the car, was very abusive and turned upon the brakeman, who put his hands on the plaintiff’s shoulders, turned him round, and “sent him down the steps.” As to what occurred after the plaintiff reached the ground, the defendant claims that the plaintiff went some distance from the car, procured a large chunk of coal, and was in the act of striking the brakeman when the latter hit him with the ventilator stick on the hand and, as he turned, struck him on the back.

This action was brought by the plaintiff to recover damages for the injuries inflicted by the brakeman on the plaintiff as the latter was leaving the defendant’s train. The jury returned a verdict in favor of the plaintiff, and from the judgment entered thereon this appeal was taken. The first and second assignments allege the court erred in refusing to grant a new trial, and this is the principal reason assigned by the defendant for the reversal of the judgment. The case was submitted to the jury in a charge to which no exception was taken, and in which the rights and duties of the passenger and the carrier were accurately and clearly defined. The learned judge charged that if the plaintiff was unlawfully assaulted by the brakeman while acting within the scope of his authority and in the performance of the duties assigned him, there could be a recovery, but if he was misconducting himself on the train, as alleged by the defendant, and the brakeman did not assault or strike him and used only such force as was reasonably necessary to get him to leave the train, the plaintiff would have no reason to complain and would have no action against the company for anything that occurred on the car or in going down the steps. As to what occurred after the plaintiff was on the ground or platform, the court instructed the jury that if he was unlawfully assaulted by the brakeman while the latter was acting within the scope of his authority, and he did not by his own unlawful act precipitate or cause the trouble, or by his negligence and conduct assist in producing it, there could be a recovery for the injuries sustained. The jury was also told that if the injuries received were the result of the plaintiff’s own negligence, violent and unlawful acts, if these contributed as a producing cause, if he was guilty of a prior assault and was hit by the brakeman, who had reason to believe from his attitude and manner and speech that he was in danger, and no more force was used than appeared to be reasonably necessary to protect himself, or eject the plaintiff from the train, there could be no recovery by the plaintiff for the injuries he sustained.

The plaintiff’s own testimony fully sustained his contention as to what occurred at the time of the alleged assault. He was accompanied by his brother who purchased a ticket at the same time, entered the car with him, occupied the same seat, and was immediately in front of the plaintiff as the two were descending the car steps in leaving the train. The brother corroborated the testimony of the plaintiff as to what occurred while they were leaving the car and after the plaintiff was on the ground. They both denied that the plaintiff was intoxicated and that there was any improper conduct or unbecoming language used by him on the occasion. The plaintiff’s story was further corroborated by certain admissions made by the trainmen and contradictions of each other by the defendant’s witnesses. The brakeman admitted in his testimony that he pushed the plaintiff off the steps after he had threatened him. One of the physicians testified that the plaintiff had a raised lump at the base of the skull in the back of the neck, which, it is claimed, must have been produced by a blow struck while the plaintiff was descending the steps in view of the admission of the brakeman that he only struck the plaintiff twice after he had reached the ground and neither time at this place on the body.

The defendant introduced several witnesses, the greater number being employees of the company, who contradicted the testimony of the plaintiff and Ms witnesses. The defendant’s theory of the case was that the plaintiff was intoxicated, used abusive and unbecoming language in the car when he was informed that he must leave it because the train did not stop at Lacey-ville, that the brakeman did not strike the plaintiff as he was leaving the car, and that after the plaintiff had reached the ground he ran some distance, procured a lump of coal and was in the act of striking the brakeman when the latter, in self defense, struck the plaintiff Avith the ventilator stick. It is denied that more force was used in ejecting the plaintiff than was reasonably necessary to accomplish the purpose. There was ample testimony on the part of the defendant company to sustain its contention, and the jury would have been warranted in returning a verdict in its favor. We have carefully read the testimony and would, as a juror, have been strongly inclined to find that the defendant’s contention was supported by the evidence. This, however, is not the test to be applied by an appellate court in determining whether the court below erred in refusing to grant a new trial. If it were, the judge would take the place of the jury and that tribunal would become a useless part of the machinery in the administration of justice. The only ground upon which we can reverse a court for refusing to grant a new trial is for a manifest abuse of its discretion. It is the function of the jury to determine the facts of the case; the duty of the court to determine and instruct the jury as to the law. If, therefore, there is evidence submitted sufficient to warrant the jury in finding a verdict, it cannot be set aside by an appellate court because there was conflicting testimony given by a greater number of witnesses. The weight of the evidence is not to be determined by the number of witnesses, nor is the verdict to be set aside because the greater number of witnesses testified against the finding. The credibility of witnesses is for the jury, and their manner, their motive, their bias, the inherent improbability of their story or the want of accurate recollection may discredit tlieir testimony and justify a jury in disregarding it altogether: Lautner v. Kann, 184 Pa. 334. The testimony of a witness when read may induce belief, but the manner and conduct of the witness on the stand may so discredit him as to justify the jury in excluding the testimony in the consideration of the case. It is the testimony impelling belief in the minds of the jury, and not the number of witnesses, which should control the decision of the disputed facts in the case.

We see no ground for convicting the court below of error in refusing to grant a new trial. There was testimony on the part of the plaintiff, which, if believed, warranted a verdict in his favor. Part of it came from eye witnesses who had an opportunity to see the whole occurrence. These witnesses were corroborated to some extent at least by other facts disclosed by the testimony. The jury, as it was their province, manifestly gave credence to the plaintiff’s fitnesses, and disbelieved the witnesses of the defendant so far as their testimony conflicted with the testimony of the plaintiff. There is no assignment alleging that the evidence was not sufficient to justify the court in submitting the case to the jury. The story of the plaintiff’s witnesses was not an incredible one nor inherently improbable. Apparently the only reason for disbelieving it would be that it was contradicted by a greater number of witnesses called by the defendant. As pointed out above, the preponderance of witnesses in number does not necessarily determine the weight of the evidence.

We do not think the conduct of the tipstaff, alleged to be a sufficient reason for a new trial, is to be commended. It was his duty to report to the judge or the court, if in session, any reasonable request of the jury. It was not for him to determine what action the judge would take, or whether the latter would sit on Sunday for the purpose of acting on the request. It is to be presumed that the judge was accessible, and whether it was on a weekday or a Sunday, if a request were made by the jury for further instructions, the tipstaff should have immediately communicated with the judge. But we fail to find in the testimony submitted on the rule any evidence that would warrant us in sustaining the contention of the appellant that the tipstaff was asked by the jury or any member of it to communicate a request for further instructions to the judge, and that his failure to do so had any effect on the jury. It is not at all clear from the deposition what was said by the jury to the tipstaff relative to the matter. It appears that one and possibly more of the jurors desired to be further enlightened about the testimony of a witness. But the deposition does not positively show that any one of the jurors or all of them directed the tipstaff to submit the matter to the judge. Nor does it appear that Juror Fisher told the tipstaff that his health would be endangered by the jury remaining out another night. There is no evidence to show that Fisher was not in good health and was not able for jury service. It appeared that the verdict was sealed and delivered to the court on the following day when all the jurors were present and consented thereto. Fisher made no objection to the verdict, nor did he bring to the attention of the court what was said in the jury room about the desire of the jury for further enlightenment as to the testimony of a witness. The learned judge of the court below did not consider the matter of sufficient importance to even mention it in his opinion overruling the motion for a new trial, and, in view of that fact and that Fisher’s testimony does not show that the alleged misconduct of the tipstaff had any effect on the verdict, we are not inclined to sustain this reason for granting a new trial.

If technically the court should have excluded Mr. Drake’s testimony as to the duties of a brakeman, it was, under the circumstances, harmless error to admit it. He testified to nothing that conflicted with the duties prescribed by tbe rules of tbe defendant company wbicb were in. evidence. The testimony, therefore, did the defendant no harm and its admission is not a sufficient reason for reversing the judgment. The third and fourth assignments are not sustained.

The judgment is affirmed.