I quote from the transcript verbatim the entire testimony of the plaintiff explaining the manner and cause of her injury. She testified as follows: "Well, the glass fell out the window. It struck something and fell all over me. That's all I know, it happened so quick. The glass was cracked clear across. I knew that before we left Little Rock, because I got on the train and my husband came down the steps to help bring my baggage down, and I left my umbrella in the station, and I put my baggage on the left-hand side and went to window to wave at my husband to bring my umbrella, and the window glass was cracked clear across. When the window fell out, it (the train) just gave a sudden jerk. Really, I think that's what shook the glass out of it. Some of it (the glass) got in my eye. I made the remark — I didn't know what it was — I says `I got a cinder or glass, one, in my eye,' and I caught my eye like that." Other testimony of the witness related to the extent of the injury and the suffering it had occasioned.
On her cross-examination the witness stated that the broken window was on the opposite side of the car, across the aisle and one seat to her rear. She did not state that she was riding backward. Her own testimony and that of all the other witnesses makes the fact certain that she was facing the direction in which the train was moving. No explanation was offered by her as to how, under these circumstances, glass which fell to the rear of her and across the car from her could reach her eye. One is reminded of the Irishman who said his enemy was a *Page 139 coward, who would not have dared hit him in the belly, if his back had not been turned.
When the rock was found appellee heard the conductor Say: "Here's what did it." She did not then say nor did any one else suggest that the train had stopped or started suddenly or that there was a "jerk" of any kind which might have broken the window. She further testified as to the cause of her injury, on her cross-examination, that most of the top part of the window was broken. "It fell out or something, the upper part of it did. The window was cracked kinder cater-cornered like, but didn't go clear down to the corner. I don't know what it (the glass) hit when it fell, just hit on the face of the window or something. The rock which they showed me was about the size of my fist. The train made a jerk before the window fell out. That's what shook it out I think. Just a sudden jerk at the time of the accident. It was not at a station. I don't know how far the train run before it stopped. It stopped because of all that excitement was going on, I guess." No other testimony relating to the manner of the injury was offered by appellee or in her behalf.
Ten witnesses were called on behalf of the defendant. Some — but not all of these — were employees of the railroad company.
It is made as certain as any fact can be made by human testimony that some miscreant threw a rock into the moving train, which knocked a hole in the window glass. There was a loud report which everyone heard. Some thought a pistol had been fired, and there was great commotion and excitement. Passengers came from the rear of the car in which appellee was riding, used as a smoker. No one suggested there had been any sudden stop or jerk. Had there been, under the circumstances some one would have heard or felt it, and have remembered it. But all the witnesses for defendant testified that there was "no jerk" or other violent or unusual motion of the train. There was an inner and an outer sash to the window, one was up and the other was down, and the witnesses, including appellee herself, testified that only the upper portion of the sash was broken, and *Page 140 a number of the witnesses who examined it testified that there was a hole in the top of the sash which some of the witnesses testified was as large as their fist, others said it was as large as a saucer. Some of the flying glass was knocked across the car. Two passengers, a section-hand and his wife, had their wraps on a seat back of the one in which appellee sat, but were not occupying that seat at the time the window was broken. An indentation in the wall opposite the window was found, and a rock was also found in this seat. One witness said it was in a pocket of an overcoat which was lying on the back of the seat. It is not certain just where the rock was found. The most definite information on this subject was elicited in the cross-examination of appellee by counsel for appellant. He asked appellee this question: "Q. It landed in Tansie's coat, didn't it?", and she answered: "That's what they say."
The owner of the coat was asked about finding the rock, and he testified as follows: "I don't know who found the rock, but anyway I had an overcoat lying on the seat, and my wife had a coat lying on the seat, and the rock was found in one of the coats. When the coat was picked up the rock dropped out." It is not even intimated by the learned and astute counsel for appellee that the rock had previously been in the pocket of the witness, who was a friend of appellee, and no one denies that the rock was thrown into the car.
It is not insisted that the railroad company would be liable if appellee's injury was caused by some one throwing a rock into the car. It does not appear to me to be consonant with the physical facts that appellee was injured in any other manner. It is chimerical to believe there is any other conclusion. Appellee was not recalled to deny, and no witness denied, any of the testimony about the loud crashing noise, which sounded like a pistol; about the, circular hole in the window; the indentation in the wall of the car, and the finding of the rock in the seat opposite the window, all of which facts were observed and were commented upon at the time by the various witnesses who testified in the case. These facts are undisputed, and it appears arbitrary to me to disregard *Page 141 the only reasonable inference that may be deduced from them.
In my opinion the judgment should be reversed, and the cause dismissed.
I am authorized to say that Justices McHANEY and BAKER concur in the views here expressed.