Opinion
February Term, 1896.
Judgment and order affirmed, with costs. —
The verdict of the jury was to the effect that the mule was vicious and was known to be so by the company. The only question we need consider is whether the evidence justified the verdict. The plaintiff's evidence, if credited by the jury, went to establish both propositions. The motion for nonsuit was, therefore, properly denied. The defendants called several witnesses who showed no hesitation in contradicting the plaintiff. They went so far and so fast that it is quite obvious that the jury distrusted their truthfulness. Some matters to which they testified were highly improbable, for instance, where the superintendent stated that the witnesses coming on together from Pennsylvania to attend the trial did not discuss the facts of the case. Yet, one witness, on cross-examination, admitted that during the journey, he did talk over the facts with the superintendent. The same witness, when asked if the witnesses, while on the train, all agreed that the mule was one of the best, answered, "If we did I would not tell you." The Circuit judge felt called upon to instruct the jury that they were at liberty to disregard the testimony of any witness who willfully testified to what was not true, and that the weight of evidence does not always depend on the number of the witnesses. The Circuit judge was satisfied with the verdict. He saw the witnesses. Without having that advantage we can discover ample grounds why he should not interfere with the verdict. It may be noted that the person nearest plaintiff when injured was not produced, nor any person that had ever led the mule, nor any explanation suggested for such neglect. As defendant's witnesses were all employees of defendant, 47 Hun, 637, is in point. Judgment affirmed, with costs. All concurred.