DISSENTING OPINION. I think this was a case for the jury, on conflicting evidence. I do not think we should overturn their verdict, since the jury have the witnesses before them, see their expression and demeanor, and frequently know something of their standing, merely because, in looking at the evidence contained in a type-written record, we would find contrary to the verdict of the jury.
I am not strongly impressed with the force of appellee's evidence, from a reading of the record; and perhaps if I were trying the case as an original trier of facts, I would find contrary to the jury's verdict. But I do not know what I would have decided on the conflict of facts, had I been on the jury, seeing the witnesses in person, noting their manner of testifying, and the various indications which throw light upon the truthfulness of a witness. *Page 771 The jury are presumed to have been selected in accordance with the statute requiring that they shall be men of good intelligence, sound judgment, and fair character. Twelve men, considering questions of disputed fact, and discussing them in the light of common, every-day experience, are more likely to reach a correct result than is a judge, merely considering his reaction to the statements of the record. Furthermore, the verdict in this case was approved by the trial judge, who had superior opportunity for determining the correctness of such verdict.
Trial by jury is an ancient institution which has safeguarded society through the centuries, its value consisting in the fact that the jury is composed of a number of men selected for their intelligence and impartiality, who have the opportunity to see and judge of the veracity of the witnesses, and of their capacity to testify to the truth.
It was proved in the case before us that there was considerable contradiction of the evidence given by the appellee and his companion by witnesses who testified to statements made subsequent to the injury, and which tended to weaken the probability of such evidence. But these matters were entirely in regard to the credibility of the witnesses, and the weight and worth of their testimony.
What is claimed to have occurred on the train at the time of appellee's injury does not appear to me to be improbable or unreasonable. The testimony is only weakened by the statements alleged to have been made to other persons after such occurrence, and does not directly dispute the testimony as to what took place at the time of the injury.
The testimony of the plaintiff and of his companion is to the effect that they boarded the freight train in the Forest Railroad Yard in the city of Memphis on a bitter cold night, and the cold becoming unbearable they sought protection from the wind between the two box cars. While there, on ladders attached to the box cars, a person *Page 772 dressed in overalls, jumper and cap of the kind usually worn by trainmen, came over the train which was moving about as rapidly as a man running, and ordered them to get off. Whereupon, appellee's companion, having had some experience in riding trains jumped off the north side of the car, on which side he had been standing, without being injured; but appellee possessed no such experience in catching rides on freight trains, and getting off. He testified that he requested the person who commanded him to get off the train, to stop it in order that he might do so, as it was approaching a town, or seemed to be, and was slowing down. But this person, whom he took to be a railroad man, stated that if he didn't get off he would knock him off. Appellee testified that the side on which he was riding was dark, that he could not see where, or into what, he would be jumping, and upon being told to jump he started toward the north side, on which there was some light, and caught his foot in the coupling, which mashed his foot off.
It is difficult for me to believe that any other person than an employee of the railroad company would be on the train, armed with a lantern and a stick of some kind, and would undertake to put trespassers off at the time of night of this occurrence. It is unreasonable to suppose that some intermeddler would be in such a place on such a mission on a cold night, and at a late hour — the high probability is that he was a member of the train crew.
Two members of the crew, on the night in question, in the interval between the accident and the bringing of the suit, had died, one being the head brakeman, who would be under the duty of protecting the train from trespassers riding thereon without authority.
The witness Rowell, appellee's companion, said that after he got off the train he went back to get his grip, which he had thrown off, and that he then saw the person he had seen on the train, or another, walking down the side of the train with a lantern and stick in his hand.
It is true that the fireman on the train and the conductor *Page 773 and flagman (who were back in the caboose) testified that they did not go over the train, and that no one left the compartment for this purpose. But the flagman was under duty to protect the rear of the train when it stopped, and did so on this occasion, when the train stopped at Middleton, Tennessee, where they were to take on two extra box cars, which necessitated a switching movement which required several minutes to perform. Naturally the head brakeman would be under the duty to go down the train, to see that all was in proper shape and condition, and that the box cars were properly placed in the train. Of course, he was not produced to testify about this matter. The rule of the company prohibits trainmen from making people get off a moving train, requiring them to wait until the train stops to eject trespassers. The negro fireman, Bunk Smith, testified that on the night in question the trainmen were dressed in overalls and caps, and carried lanterns and coupling sticks, which he described in his evidence. He further testified that a third person would not have been permitted to interfere in the management of the train or the ejectment of a trespasser therefrom. He also testified that all trainmen were required to look out for trespassers and to assist in ejecting them. See 52 C.J. 651, 652; Illinois Cent. R. Co. v. Brown (Miss.), 39 So. 531; Loper v. Yazoo M.V.R. Co.,166 Miss. 79, 145 So. 743.
It is inconceivable to me that any person not a member of the crew would undertake to make a trespasser jump off a moving train, with no motive for so doing, and no duty or authority in the matter. It is not at all improbable that one of the crew went over the train for some purpose in connection with its operation; and the positive testimony of the appellee and his companion is to the effect that there was such a person, dressed as described, that he had a lantern and stick, and that he directed them to jump off, threatening that they would be knocked off unless they did so.
There is no dispute as to the appellant's having sustained *Page 774 an injury on the night in question, on this train, because on reaching Corinth, Mississippi, he was carried to a hospital, where his foot was amputated and he received treatment, the hospital being owned by a doctor who has since died, but who at the time was surgeon for the railway company, and who interested himself in taking a purported statement from Buse.
When examined in regard to statements taken at the hospital, Buse testified that he did not know what he signed; that he signed something, but did not remember some of the statements attributed to him. The same thing was true with reference to the statement made by Rowell to the claim agent of the railway company, he also testifying that he did not know exactly what was in the statement signed by him.
The evidence, from the standpoint of these alleged statements, is unsatisfactory. There was considerable time between the accident and the bringing of the suit, which was accounted for by the appellee on the theory that an attorney whom he consulted advised him that suit was barred by the statute of limitations — which advice proved to be erroneous; but this accounts for delay in bringing the suit.
It is with reluctance that I dissent from an opinion in a case where the evidence, to my mind, is so unsatisfactory. But I think this court should be cautious not to usurp the functions of the jury in deciding issues of fact. If the judgment were to be reversed merely that a new trial might be had, as being against the weight of the evidence, I would probably join in such opinion; but I think that we should never reverse a jury on the theory that one of the parties was entitled to a peremptory instruction, where there is some evidence to support the jury verdict, although it might appear to be against the weight of the evidence. In proper cases we are required to reverse the verdict of a jury as being contrary to the weight of the evidence; but in such case we should let another jury pass upon it, being authorized to set aside *Page 775 as many as two judgments on that ground, that being the limit of new trials to be granted to the same party under section 592, Code of 1930.