Wastl v. Montana Union Ry. Co.
| Citation | 42 P. 772,17 Mont. 213 |
| Parties | WASTL v. MONTANA UNION RY. CO. |
| Decision Date | 25 November 1895 |
| Court | United States State Supreme Court of Montana |
Appeal from district court, Silver Bow county; William O. Speer Judge.
Action by Peter Wastl against the Montana Union Railway Company for personal injuries. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed.
This is an action for damages for personal injuries. It appears from the pleadings in the case that the defendant corporation, on April 15, 1889, was the owner of and operating a railroad having depot, yard, engines, switches, and other appliances for carrying on its business at Butte; that, on the night of said day, the plaintiff was employed by the defendant as a laborer, and that it was his duty to wipe and coal engines in the roundhouse and yards of defendant, and to act as helper to the hostler, under the orders and directions of the hostler, and that it was his duty to obey any orders of the hostler in and about whatever he was directed to do by him in coaling, wiping engines, and turning the switches in running engines in and about the yard; that it was the duty of said hostler to so manage, handle, and operate said engines that no injury should be done to the plaintiff or other persons through the negligence of the hostler in managing and operating the same; that the hostler directed the plaintiff to get on the engine, and go with him to the switch, and to get off and turn it for him when the engine stopped; that the night was very dark; that plaintiff, having never before turned the switch, did not know its exact location; that, the engine having stopped, plaintiff got off as directed, and while looking and groping in the dark for the switch, the hostler negligently, without giving any signal or blowing the whistle, ran the engine upon and over the plaintiff; that there was no headlight or any light on the engine at the time, or any other light by which plaintiff could see the approach of the engine; that the hostler was the superior servant and employé, whose orders it was the duty of plaintiff to obey; that plaintiff was without fault or negligence in the premises; that plaintiff was badly and permanently injured by being struck and run over by said engine. This action is brought to recover damages for the injuries incurred. The answer denies every material allegation of the complaint, and alleges affirmatively that it was no part of plaintiff's duties to turn the switch that he was not ordered by the hostler or any one else to do so; that he was on the engine without any authority, on his own account, and that the hostler did not know of his presence; that plaintiff was injured by his own carelessness, negligence, and fault. The case was tried with a jury, and a verdict was returned in favor of the plaintiff. Judgment was rendered in accordance therewith. The defendant appeals from the judgment and order made denying a new trial.
J. S. Shropshire, Geo. B. Winston, and Forbis & Forbis, for appellant.
Geo. Haldorn, for respondent.
PEMBERTON C.J. (after stating the facts).
The principal assignments of error in this case are those which attack the instructions given by the court to the jury. Instructions Nos. 7 and 15 are claimed by counsel for defendant to be especially erroneous. These instructions are as follows: "(7) You are instructed that, although the preponderance of the evidence is not always determined by the number of witnesses testifying in a case, yet, if in a case there are only one or two witnesses who testify to a given state of facts, and six or seven witnesses of equal candor, fairness, intelligence, and truthfulness, and equally as well corroborated by other evidence, and who have no greater interest in the result of the suit, testify against such state of facts, then the preponderance of the evidence is determined by the number of witnesses." "(15) If the jury believes, from the evidence, that the witnesses Roe, Hoskins, and Leisks have willfully sworn falsely on this trial as to any matter or thing material to the issues in the case, then the jury are at liberty to disregard their entire testimony, except in so far as it has been corroborated by other credible evidence, or by facts and circumstances proved on the trial."
Instruction No. 7 told the jury that the preponderance of the evidence was to be determined in the case at bar by the number of witnesses, if they were all of equal credibility, etc. In 2 Thomp. Trials, § 2422, it is said: To the same effect, see Ely v. Tesch, 17 Wis. 209; Bierbach v. Rubber Co., 54 Wis. 208, 11 N.W. 514; Childs v. State. 76 Ala. 93; State v. Tipton, 15 Mont. 74, 38 P. 222. We think this instruction was an invasion of the province of the jury. It is the sole province of the jury, under the law, to determine the credibility of the witnesses, and the weight to be given to their testimony. The preponderance of the evidence is not determined in any case solely by the number of the witnesses, however credible the witnesses may be. If so, it would be difficult to see how a litigant would fail in any case if he should be fortunate enough to have the greatest number of credible witnesses. 5 U.S. Gen. Dig. Ann. p. 887, § 3673, and authorities cited.
In instruction No. 15, given above, the court designated three witnesses by name, and told the jury, if they believed these three witnesses had willfully sworn falsely as to any material matter or thing, they were at liberty to disregard their entire testimony, unless corroborated, etc. In reference to such instructions, 2 Thomp. Trials, § 2421 says: ...
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