Hill v. West End Street Railway Co. , 158 Mass. 458 ( 1893 )

Barker, J.

There is no sound reason why the familiar doctrine that a party may contradict, though not impeach, his own witness, should not, if the circumstances are consistent with honesty and good faith, be applied when he is himself the witness. Nor, under the same circumstances, is there any reason why, to prove material facts denied by his own testimony, he may not rely on the testimony of witnesses called by the adverse party. In such a case counsel may properly argue that the jury should find in accordance with part of his client’s testimony, and in other particulars should reject it and find in accordance with the testimony of other witnesses, on whatever side called. In other words, the law recognizes the fact that parties, as well as other witnesses, may honestly mistake the truth, and requires juries to find the facts by weighing all the testimony, whatever may be its source. It is rarely that two persons relate alike the same occurrence; and in cases of accidental injury it is not unusual for the person injured correctly to perceive and accurately to remember some of the circumstances, and to be unable to give a correct statement of all. Even when witnesses are found to have deliberately testified falsely in some material particular, the jury are not required to reject the whole of their uncorroborated testimony, but may credit such portions as they deem worthy of belief. Commonwealth v. Wood, 11 Gray, 85, 89, 93. Commonwealth v. Billings, 97 Mass. 405. They are to weigh all the evidence, and while they may not pervert or distort it by rejecting integral parts of a statement, they may accept or reject each distinct statement. They may thus find proved a state of facts to which as a whole no single witness has testified, and which in some particular is contrary to the account given by every individual witness. If, in this way or otherwise, they arrive at a verdict unsupported by the evidence, or contrary to its weight, the power to set the verdict aside is in the court, and is the remedy provided. But the court has no right to instruct them that there is no evidence of a fact which can fairly be inferred from all the evidence, although contrary to some portion of. the testimony of every witness.

Applying these principles to the present case, a majority of the court is of the opinion that there was error at the trial. The jury could find from the plaintiff’s testimony, that after she had starred to leave the car, and just as her right foot touched the ground, while her left foot was on the running board, the car suddenly started forward without warning, twisted her around, and threw her to the ground with a jerk; consistently with this finding they could reject her statements that it was after the car had come to a full stop that she stepped upon the running board and put her foot to the ground, and that the car had stopped before she attempted to leave her seat to alight. They could the more properly reject these statements because all of the defendant’s witnesses testified that she got off the car while it was slowing up and coming to a stop, and before it had stopped, and that it went three or four feet from the point where she fell before it stopped. This was the substance of all the evidence as to how the accident happened.

Assuming that the fair construction of the testimony of the defendant’s witnesses is that in slowing up and coming to a stop the car made no sudden start forward, it yet remains that the plaintiff testified that the car did make a sudden start just as she put her right foot"to the ground; and if the jury believed this statement, and also believed the testimony of the defendant’s witnesses, that she got off while the car was slowing up and before it had stopped, they would properly find that she was injured by the sudden starting of the car after it had begun to slow up, and before it had come to a full stop. Thus, although no witnesses had testified that while the car was coming to a stop it was started up with a jerk, there was evidence from which the jury could find that such was the fact.

As the court ruled otherwise, and refused to allow the' plaintiff’s counsel to argue upon that theory, and instructed the jury that the plaintiff could not recover unless they found that the car had stopped and was standing still when she attempted to alight, a majority of the court is of opinion that the verdict must be set aside. • Exceptions sustained.