Scott v. Chesapeake & O. R. Co.

• Decision Date: 24 April 1897
• Citation: 43 W.Va. 484
• Court: West Virginia Supreme Court
• Parties: Scott v. Chesapeake & O. R. Co.

43 W.Va. 484

Scott

v.Chesapeake & O. R. Co.

Supreme Court of Appeals of West Virginia.

Submitted January 20, 1897

Decided April 24, 1897.

Review on Appeal Weight of Evidence.

The weight of the evidence is for the jury, and, unless it plainly preponderates against the verdict, it will not be disturbed, (p. 487.)

Error to Circuit Court, Kanawha county.

Action by George W. Scott against the Chesapeake & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Simms & Enslow and J. E. Chilton, for plaintiff in error.

E. W. Wilson, for defendant in error. Dent, Judge:

The Chesapeake & Ohio Railroad Company complains of a judgment for two hundred and fifty dollars rendered against it by the Circuit Court of Kanawha county at the suit of George W. Scott. The only witness personally introduced before the jury was the plaintiff, who testified: That on the 30th day of January, 1895, he purchased a round-trip ticket of the defendant, at Charleston, to Cincinnati and return, which is as follows: "Chesapeake & Ohio Railway Co. (One first-class passage.) Cincinnati, ()., to Charleston, W. Va. Good returning only on trains Nos. 16 and 4, leaving Cincinnati at 7:40 a. m. and 7:00 p. m., respectively, January 31st, 1895, and train No. 16, leaving Cincinnati at 7:40 a. m., February 1st, 1895. Not good for stop-over. Exc. 19. W. H. Fuller, General Passonger Agent, (4. Special Excursion.)" That he went to Cincinnati on that day, and stayed all night with his brother, and started to return the morning of the 31st, the next day, and missed the train. On the following morning he again went to the depot, with the intention of taking 7:40 a. m. train for home. He showed his ticket to the gateman, and passed in to where the train was standing, and went to get on the train, when the conductor or brakeman said to him: "The ticket ain't no account. You can't go on this train. Get out of the way." He went into the ticket office, and showed it to the agent, and the agent said: "'That's all right. Go on and get on that train, ' he says, and I went back, and the gateman would not let me through. I brought the ticket on back to him, and he said he would go up and get General Ryan to extend the time. I took it to General Ryan [general passenger agent for the Chesapeake & Ohio Railroad], and he said he would let me have a ticket for $4. And I told him that if he could not give it to me, or take it for its face value, I did not want a ticket at all; that it was a round-trip ticket and return. He said he would give me a ticket for $4." The usual fare is five dollars and fifteen cents. The reason he went to Gen. Ryan to have the time extended was because he had missed the train without his fault, on account of the servants of the company refusing to honor the ticket. He went back, and borrowed the money from his brother to buy a ticket, and the next day (February 2d) returned home. He denied telling any person that he missed the train on the 1st of February, but said he had remarked that he missed the train on the 31st, in the hearing of some strange women where his brother was staying.

The defendant introduced the depositions of three witnesses, Bertie Hole, Mary Hall, and Mary Ingram, whose testimony is to the effect that plaintiff told them, or remarked in their hearing, that he had missed the train on the 1st of February, 1895; also, the deposition of F. W. Lamberton, who says he was the conductor on the 7:40 a. m. train on the morning of the 1st February, 1895, and that he did not prevent any one from getting on that train. Charles W. Thoburn, collector on the train, testified to the same effect. G. W. Mullins, brakeman on same train, testified to the same effect. A. W. Flowers and John McGrail testified that they were gate keepers at the depot the morning of February 1, 1895, and that they were the only two, and that neither of them prevented any one from passing through the gates on that morning because his ticket was not good, nor for any other reason. Also, Edgar Nornick, another gate keeper, testified to the same effect. These witnesses were not presented before the jury, nor submitted to cross-examination, and the jury were not afforded any opportunity of seeing them or hearing them testify. All of them, no doubt, testify to the best of their memories. Human memory is very treacherous, and, if they had been produced in court, by crossexamination their memories might have been refreshed. At least, the jury would have had a much better opportunity of judging of the truthfulness of their testimony. This was a risk the defendant must have decided to take, as it was fully able to produce its witnesses in court. It would have been good policy on the defendant's part also to have proven that such an occurrence did take place the morning of the 2d, when the ticket had expired, if it were possible to do so.

The depositions of these woman are hardly worth considering, for they testify that plaintiff said he missed the train the morning of the 1st, and that he went away the morning of the 2nd. This is, to some extent, corroborative of the plaintiff's testimony; for he did miss the train the morning of the 1st, and testified that he left for home the morning of the 2nd. The impression is endeavored to be produced that he missed the train for the reason that he was too late. This is not clear from the depositions, but he admits that he did miss the train for this reason the morning of the 31st January. Depositions of a doubtful nature, depending merely on questions of memory, have very little weight before a jury, and rightly so; for the very object of jury trials is to have, among other essential things, personal inspection and observation of the witnesses, including their mode and manner of testifying, under the supervision of the court and the rigid cross-exami- nation of opposing counsel. The plaintiff was present, and submitted himself to the ordeal of a most rigid and searching cross-examination, in which able counsel used every lawful endeavor to impeach his testimony and prejudice him in the minds of the jury, from which he came out unscathed; and this fact may possibly have had the effect to increase the damages awarded, for jurors are oftentimes irritated by the unbearable and unjustifiable manner in which witnesses are sometimes unmercifully treated by censorious counsel. This, however, may not apply to this case, in any sense. But after the defendant has had the opportunity, but failed, to produce its witnesses in court, and the jury believe the witness produced before them, rather than the depositions of those not so produced, this Court could hardly be justified in holding the verdict to be contrary to the evidence The jury heard the witness, and believed him, and refused to disregard his evidence, by reason of the uncertain testimony of those they did not hear. It is their province to weigh the testimony, and it is not for this Court to disturb their finding, sustained by the lower court, unless it is plainly contrary to the preponderance of the evidence. Every witness for the defendant may have sworn to what he honestly believed to be the truth, and yet the plaintiff's evidence be unimpeachable, How7, then, can this Court disturb their verdict? Defendant claims that the plaintiff should not recover...