Action for personal injuries under the Federal Employers' Liability Act. Judgment for $17,000 and defendant appealed.
The petition alleged (1) that the defendant negligently failed to provide the car mentioned in the principal opinion with a receptacle for tools; (2) that it negligently failed to secure the tools on the ear; (3) that Essick, co-employee of plaintiff, negligently came in contact with a tool on the car, causing the same to fall from the car and derail the same, thereby causing plaintiff to be thrown from the car and injured. The first two allegations of negligence are not for consideration. The cause was submitted to the jury solely on the third allegation of negligence.
The motorcar in question was made of wood, reinforced with steel. It is five feet in length and four feet and four inches in width. An elevated seat eighteen inches in width runs lengthwise in the center the full length of the car. The floor consisted of three boards on each side of the seat. The width of the space between the outside board and the next board is about an inch. The other spaces between the boards is about one-half inch. There are three cross timbers in the frame of the car, consisting of the front, the center and the rear timbers. The top of these cross timbers is about two inches above the floor of the car. In other words, the floor of the car did not rest on the top of the cross timbers.
In Division One the opinion of STURGIS, C., reversing the judgment on the ground of no substantial evidence to sustain the verdict, was adopted. FRANK, J., dissented and adopted as his dissenting opinion that part of the opinion of FERGUSON, C., which ruled that there was substantial evidence to sustain the verdict. In this situation the *Page 245 cause was transferred to the court en banc. Recently the cause was reassigned to TIPTON, C.J., who has submitted for consideration an opinion affirming the judgment. In said opinion the Chief Justice substantially adopted the facts from the dissenting opinion by FRANK, J., and affirmed the judgment. In doing so he adopted the facts considered by FERGUSON, C., in ruling the question of whether there was substantial evidence to sustain the verdict.
[10] In the course of said opinion the Chief Justice states that "if the appellant had stood on its demurrer at the close of the respondent's evidence, there is no doubt that the evidence would have been sufficient to go to the jury." Everyone will agree to this statement. But that is not the question for determination. The question is whether or not there can be found in the record any substantial evidence to sustain the verdict. In other words, is there believable evidence to sustain the verdict? In determining said question it is not only proper but necessary to consider all the facts and circumstances in evidence. In doing so the Chief Justice admits that we do not weigh the evidence in the judicial sense of that term. He also admits that a judgment may be set aside regardless of a jury verdict, even though the unbelievable evidence is not contrary to the physical facts. The only evidence to sustain the charge of negligence submitted to the jury was given by the plaintiff.
STURGIS, C., ruled that the testimony of the plaintiff with reference to said allegation of negligence was unbelievable. FERGUSON, C., ruled that the jury would be authorized to believe the evidence of plaintiff on the question. On the question the Chief Justice states that "we do not think that this is a case where the respondent's evidence is so unbelievable as to say it is insubstantial." In making said statement he admits that the evidence is unbelievable. But he thinks that it is not so unbelievable as to be worthless. The evidence is either believable or it is unbelievable.
In ruling the question the Chief Justice gave no consideration to uncontradicted evidence as follows:
B.C. Hanna, assistant roadmaster, testified as follows: "The car suddenly derailed at a private road crossing. As to this crossing there was a four by ten board on each side of each rail in order that wagons and vehicles could pass on it. The boards were about twelve feet long and the bar fell off at that place. The bar stuck into the end of the board. There was a hole or a gouge right in the end of the board. It was beveled and the gouge was right in the end of the bevel almost at the top of the board, about an inch from the top of the board, and then it was scarred about six inches beyond the gouge or the hole. The gouge or hole was about three inches from the west rail of the track, and it was in one end of one of those planks — the inside board.
"The pictures, defendant's exhibits three and four, correctly show *Page 246 the situation there — the crossing, the planks and the hole in the planks. Defendant's exhibit four is a picture showing the crossing in question and the gouge or hole formed by the bar punching in the bevel. That hole is right on the west side of the track — about three or four inches from the west rail; right in one of the ends of those planks.
"After getting the injured men away, I immediately determined to follow them in the car to make some disposition of the car. I had, of course, to move it off the track, and when I got ready to get it on the track found this bar that was on the left side sticking down between the cross beam and the iron strip in the extreme northwest corner of the car. It was bent at an angle of about ninety degrees in such a way that I had to work it around to get it out. I got the bar out and put the car on the track and proceeded towards Tamms. Yes, the bar I found was between the slats and that cross beam on the top. There was a little iron strip underneath. The bar had rolled through a hole between the cross beam and this iron strip and bent back under the car. The bar that was found in the northwest corner of the car as described after the derailment was the bar used by Mr. Weaver (plaintiff) which was the longer and smaller bar."
Will Essick, co-employee of the plaintiff, testified as follows: "I remember about the derailment. It was done so quick I couldn't state how it was done until we had got on the ground. When we got on the ground I said: `What in the world is the matter.' And Mr. Hanna said: `That bar worked through a car.' I saw the hole that the bar made in one of the planks in the crossing after the accident. I saw the bar that was on Mr. Weaver's (plaintiff) side. It was bent at an angle. I saw the bruises of the wood were on the northwest corner of the car. The bar was bent at right angles, not plumb square, and there were scratches on the northwest corner. It was bent between the front beam and the slats and that piece of iron underneath. The photograph, plaintiff's exhibit four, shows the hole in the plank where a punch bar struck it, right at the south end of the plank that runs parallel with the railroad. I saw that hole at the time."
H. Austill, bridge engineer, testified as follows: "After I got up we looked around and the punch bar on the left side was badly bent. The crack in the floor between the floor planks and the west sill of the car showed that the bar had gone forward through the crack. The bar was bent somewhere near right angles or square. There were scars or bruises on the northwest corner of the car where we found the punch bar bent."
This evidence, considered with the other evidence in the case, conclusively shows that the plaintiff was not injured by a bar kicked from the front end of the car by Essick. If so, there is no substantial evidence to sustain the verdict. In other words, plaintiff's *Page 247 testimony on the question is unbelievable. If Essick kicked a bar from the front end of the car (which I do not believe), it is clear that said bar did not cause the derailment. The derailment was caused by a bar slipping forward through an opening in the floor and through an opening between the steel reinforcement and the front cross beam. This movement of the bar did not interfere with the movement of the car until the car reached the private road crossing. At this place the point of the bar came in contact with the crossing board, which caused the derailment. For these reasons I respectfully dissent. Hays, J., concurs.