This court has no right to weigh the evidence, in order to procure a basis for holding erroneous instructions to be harmless. The two mail clerks who threw the mail bags from the car knew better than anyone else where the car was when the bags were thrown. Each of them testified that he saw the fence which formed the south side of the pen, and that instant the bags were thrown. One of them testified that "the speed of the car carried it past." Each of them also testified that when conditions were such that they could not see to make a safe delivery of the bags, the bags were carried to the next station, and later returned. To be sure, witness Smith testified that he saw the particular bag leave the car door, and saw it come down and strike appellant in Franklin Street; but how can this court know who was mistaken? Was it the two mail clerks, witnesses for appellee, who said they threw the bags when the car was at the pen, or was it Smith? For aught this court may know, the story of Smith may have been a pure fabrication. It is to be observed that Smith did not testify that the bag which struck appellant was thrown "directly" into Franklin Street. He testified that it was thrown out of the car door when "west of Franklin Street," and, in effect, testified that it was *Page 32 carried by the speed of the train into the street. The testimony of Crandall, who came for the mail after the train had passed, is of little weight. A part of his cross-examination is as follows: "Q. There was a heavy covering of snow on the ground, wasn't there? A. I don't think there was much snow on the ground. Q. The ground was covered with snow, wasn't it? A. I won't say. I don't remember. . . . Q. You say you went along and examined the ground in the pen? A. I just looked. Q. Don't that refresh your recollection that there was snow on the ground? A. No. There might have been some. Q. There was some? A. There might have been a little. . . . Q. There was enough snow on the ground that you could see tracks made by people? A. I suppose you could. I don't think there was much. May be there was. Q. Isn't that why you were up there, to see about the tracks? A. No. I went up to see where the mail was." Now, to use this evidence as establishing a "physical fact" to discredit the testimony of the mail clerks, and to show the impossibility of the bags being thrown out at the pen, is giving it greater weight than it deserves, even if we were weighing the evidence which we have no right to do.
It is also my judgment, that in the majority opinion too much stress is laid upon the question as to whether the bag struck the pen or the ground before it went into Franklin Street. Clearly, the theory of each paragraph of complaint is that the delivery of the bag at that place, under the conditions stated in the complaint, was dangerous to a traveler on the highway, and not the mere matter of whether it struck the pen or ground and bounced, or was carried into the highway by the momentum of the train. Proof that the bag which struck appellant did not strike the pen or the ground would not in my opinion be a material variance. See, Pittsburgh, etc., R. Co. v. Warrum (1908),42 Ind. App. 179, 193, *Page 33 82 N.E. 934, 84 N.E. 356; Sargent v. St. Louis, etc., R. Co. (1893), 114 Mo. 348, 21 S.W. 823, 825.