Defendant's counsel point to contradictions in the testimony of plaintiff's truck driver and infer a dishonest purpose, to wit, the substitution of a false story to conceal the inconvenient truth.
Plaintiff's counsel make a like analysis of defendant driver's testimony, concluding that the truth would be prejudicial to him and that his story is a fabrication designed to conceal the inconvenient truth.
There being no other witnesses than the two drivers one turns to the undisputed photographs for a revelation of the truth.
Since the conclusion as to an issue of fact in civil actions must follow even a slight preponderance of the testimony, I conclude from the photographs that it is more probable that the accident happened as claimed by defendant's driver. Such confusion and inconsistency as appears in his testimony I attribute to slowness of mind and limited capacity for self-expression.
I find the issues for the defendant on the complaint and on the counterclaim. *Page 120
The plaintiff has pleaded a statute of limitation to the counterclaim. In an original process the statute is stayed, not when the complaint is returned to the clerk's office, but when the proceeding is commenced, by legal service upon the defendant.
In this case the purpose and only justification of a statute of limitation was accomplished when the defendant's motion to amend was filed, accompanied by the proposed counterclaim.
Judgment is rendered for the defendant on the complaint; and on the counterclaim to recover of the plaintiff $484.21 damages.