APPEAL by the plaintiff, Charles Kruse, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 24th day of February, 1910, upon the verdict of a jury dismissing the complaint, and also from an order entered in said clerk's office on the 19th day of April, 1910, denying the plaintiff's motion for a new trial made upon the minutes.
Thomas J. O'Neill [Leonard F. Fish with him on the brief], for the appellant.
John F. Brennan, for the respondent.
The plaintiff appeals from a judgment dismissing his complaint, entered upon the verdict of a jury in favor of the defendant. The plaintiff complains that, while he was stealing a ride upon a freight train of the defendant he was kicked from a freight car by a brakeman who was on top of a box car. The injuries resulting to the plaintiff were most serious in character. He was mutilated severely, losing an arm and sustaining other grievous physical injuries. He was a young married man of twenty-two years.
Practically the whole controversy at the trial centered about the question whether he had been kicked from the train by one of the defendant's trainmen. The evidence on this question was sharply conflicting. In addition to his own testimony the plaintiff produced a companion, named Carroll, who was likewise stealing a ride upon the train. Both of these witnesses swore that plaintiff boarded one of the box cars while it was moving and climbed up a stationary ladder at one end of the car, and that when his head came above the top of the car a brakeman came along from the rear of the train, on the tops of the box cars, and, after 'hollering' at the plaintiff to get off, kicked the plaintiff in the face, thus dislodging him and causing him to lose his hold and to fall to the track below, under the
wheels of the moving train. The train in question was quite long, having, as the witness Carroll testified, about thirty cars, or, as the defendant's witnesses swore, about fifty cars. The occurrence in question is said to have taken place somewhere near the rear end of the train. The plaintiff gave no evidence to identify his assailant, except as to his stature and the fact that the brakeman who kicked him was coming forward from the rear end of the train. Carroll, however, identified the man as one who had stood upon the top of the train towards its rear end, and who had been engaged in giving signs for the movement of the train, and who while so signaling was moving forward over the tops of the cars towards the engine.
The proofs given on the part of the plaintiff showed but one trainman on the top of the train. The defendant produced all its men who were in charge of this train. According to their testimony there was but one brakeman on its top, namely, one Butler. All of these men denied that either of them had kicked anybody on or from the train. Butler located himself on the top of a car in the forward part of the train, some four or five cars back from the the engine. Some other witnesses were produced by the defendant who swore that they saw the train passing and that but one man was on top of it, a brakeman, and they did not see him kick anybody at the time the train was passing at the place where the plaintiff was injured.
The case was tried with spirit by counsel of no little experience and resourcefulness. Whatever criticism may suggest itself to the mind of this court as to the conduct of the trial, it cannot be said that any possible point of attack or defense was overlooked by either counsel. Considering the conflict of testimony, and the sharpness with which the issues were presented to the jury, there would be no justification for any interference by this court with the verdict of the jury on the questions of fact. The learned counsel for the plaintiff insists most earnestly that his client did not in fact have that fairness of trial which is the right of every litigant, and he specifies a number of particular instances in which, as he claims, this unfairness was shown either by misconduct on the part of his adversary or by the rulings of the trial court. An examination of the record shows that neither counsel was lacking in zeal.
This quality, while necessary to every counsel, sometimes when present in over-abundance tends to convert a court room into a cockpit, and is not at all helpful to that atmosphere of calm and of patient effort to sift out the truth which should mark every judicial inquiry. Neither the court nor the jury is helped at all by over-contentiousness or false emphasis. While everybody knows this well, not everybody keeps it in mind, and too often trials of fact tend to become mere struggles of voice and mind, aimed towards personal victory rather than to the ascertainment of truth for the purposes of justice between man and man. Yet an appellate court cannot reverse a judgment entered upon a verdict of a jury simply because counsel have been over-zealous or over-insistent upon that which either may have considered as the turning point of the issue. This is a workaday world, and the rule of perfection controls no more in a court room than in the outer world. Between much zeal and pre-judicial unfairness there is very appreciable difference.
Let us see where and how the plaintiff has been aggrieved improperly if at all on the trial of the issues. The first ground of grievance is that the trial court permitted the defendant just after the plaintiff had opened his case to call to the witness stand one Roddy and to ask him to identify his signature to a paper. This of course was out of regular order, but wherein it was pre-judicial does not appear. The paper itself, neither then nor thereafter, was offered in evidence, and neither the jury nor this court knows anything about its contents. Next in order is the grievance of the plaintiff that when his counsel thereupon asked this witness whether he, the witness, had not told the plaintiff's counsel that he 'did not see the actual happening of this accident,' the question was excluded upon objection of the defendant. This exclusion was proper enough at that time; the witness had given no testimony whatever as to the accident, and the question did not tend to any contradiction of him in any way. At most, ...