I do not agree with the majority opinion in reversing this case. The majority opinion says, among other things, that "conditions pertaining to Penny's body and circumstances in which it was found, were of evidential value and properly went to to the jury, where the question was whether Penny was killed in consequence of his own miscalculations in attempting to leave the moving train, or was struck by the engine because of inattention of train operatives." There is no evidence in the case showing that he got on the train anywhere. The train did not stop at Camden, but went through there at about six miles an hour; but the railroad men say that an able-bodied man could get on a train at six miles an hour. There is no evidence that he was about the water tank where the train stopped; and the undisputed evidence is that he started walking down the track towards home quite a while before the train came.
The majority opinion then quotes from the testimony of Keltner, the engineer, that he knew he was keeping a lookout because he always did and the rules required it, and he kept it for his own safety, and at the end of the run he examined his engine and found no blood or any other indication that he had struck anyone. The majority opinion then said: "Our construction of Keltner's testimony is that he said he was keeping a lookout. It would be unreasonable, after a lapse of three years, to expect him to remember specifically having passed an isolated section on his run at a particular time. It is doubtful if anyone would have believed him if he had *Page 75 affirmed a distinct, mental impression of rails, ties and road bed brought forward through time from the fleeting seconds during which the train was passing the identified point. Keltner's frankness in saying he knew he kept a lookout because it was his duty to do so; that his habits were fixed and that he knew he was doing his duty, is commendable."
What does this court know about his frankness? It did not see him, hear him testify, had no opportunity to observe his conduct and demeanor on the stand, and had none of the facts, to judge of his truthfulness, that the jury had. The trouble about the majority opinion is that it not only holds that Keltner was frank, although the judges never saw him, but it holds that he told the truth, in the face of the fact and the law is that the jury are the judges of the credibility of the witnesses and the weight to be given to their testimony. Everyone knows that you may hear a witness testify, observe his demeanor on the stand, and frequently be able to tell from his manner and testimony, whether he is telling the truth. And this court has many times approved an instruction that tells the jury that they are the sole and exclusive judges of the credibility of the witnesses and the weight to be given to their testimony. This court has also many times approved an instruction which tells the jury that in weighing the testimony they may take into consideration the witness' demeanor on the stand, his knowledge of facts about which he testifies, his manner of testifying, his bias or prejudice, his willingness or unwillingness to testify; and when they have an opportunity to observe all this, then for this court to say they acted "arbitrarily" is ignoring the law and usurping the province of the jury.
How does this court know that they arbitrarily rejected his testimony? How can this court say, by merely reading the record, that the witness told the truth, when the jury found that he did not tell the truth?
"From the moment that a witness is called to the stand until he leaves it and is lost to view, his physical and mental characteristics are subject to the analysis of *Page 76 twelve students of human nature, having different degrees of capacity, and more or less experience, who pass judgment upon him as well as his story." Gorman v. Hand Brewing Co.,28 R.I. 180, 66 A. 209.
"The tongue of the witness is not the only organ for conveying testimony to the jury; but yet it is only the words of a witness that can be transmitted to the reviewing court, while the story that is told by the manner, by the tone and by the eye of the witness must be lost to all but those to whom it is told." Carter v. Bennett, 4 Fla. 283; Moore on Facts, Vol. 2, pages 1422, 1423.
"`It can scarcely be repeated too often,' said the Illinois Supreme Court, `that the judge and jury who try a case in the court below have vastly superior advantages for the ascertainment of truth and the detection of falsehood over this court sitting as a court of review. All we can do is to follow with the eye the cold words of the witness as transcribed upon the record, knowing at the same time, from actual experience, that more or less of what the witness actually did say is always lost in the process of transcribing. But the main difficulty does not lie there. There is an inherent impossibility of determining with any degree of accuracy what credit is justly due to a witness from merely reading the words spoken by him, even if there were no doubt as to the identity of the words. However artful a corrupt witness may be, there is generally, under the pressure of a skillful cross-examination, something in his manner or bearing on the stand that betrays him, and thereby destroys the force of his testimony. Many of the real tests of truth by which the artful witness is exposed, in the very nature of things cannot be transcribed upon the record, and hence they can never be considered by this court'." Vol. 2, Moore on Facts, p. 1419 et seq.
The only possible basis for the opinion of the majority is that they hold that Keltner told the truth, and we have no right to invade the province of the jury. If all witnesses told the truth, it would be different, but besides our own observation, we have good authority that some witnesses do not tell the truth. *Page 77
"A faithful witness will not lie: but a false witness will utter lies." Proverbs 14: 5.
But the majority, in the opinion, says that Keltner told the truth, although they never saw him, never heard him testify, and know nothing of his demeanor on the stand.
"If a false witness rise up against any man to testify against him that which is wrong; then both the men, between whom the controversy is, shall stand before the Lord, before the priests and the judges, which shall be in those days; and the judges shall make diligent inquisition:". Deuteronomy 19: 16, 17, 18.
Why did the law require both men, between whom the controversy is, to stand before the Lord, before the priests, and the judges? Evidently so that they could judge of their credibility and the weight of their testimony, just as we require witnesses to testify in the presence of the trial judge and jury; and when they hear them they know whether or not they told the truth.
Why does the law authorize the jury to pass on the credibility of the witnesses and the weight of their testimony, if this court can then read the record and say that a witness, whom the trial judge and jury thought told a falsehood, told the truth?
We have no right to thus invade the province of the jury, and in my opinion we violate the law when we do so. I think the judgment in this case should be affirmed. Mr. Justice HUMPHREYS agrees with me in the declarations here announced.