Danko v. Pittsburg Railways Co.
Danko v. Pittsburg Railways Co.
Opinion of the Court
Opinion by
At the time Chester Danko was injured he was but four years of age, and the question of his contributory negligence is, therefore, not in the case. But a single witness — J. C. McLaughlin — was called by the plaintiffs to describe the accident, and from' his testimony in chief the negligence of the defendant company was clearly for the jury. He testified that when one of its summer cars had reached the end of a line in the borough of Du-quesne, the injured plaintiff and another boy, somewhat older, got upon it; that the older boy turned the seats and just before the car started the younger one attempted to get off; that while he was hanging on the running board and trying to get off the motorman rang the gong and the conductor gave the signal to start; that when the car started it gave a lunge and the little fellow fell off, the rear wheel of the car passing over and crushing one of his feet; that when the conductor gave the signal to the motorman to start he was on the rear platform making out a report; that he did not glance at the running board, where he would have seen the boy about six feet
What appears in the written statement to which the employee of the company procured McLaughlin’s signature is radically inconsistent with his testimony in chief on the trial, but it is first to be noted that the statement was written by the employee, and when the witness signed it he did not read it, nor was it read to him. In this he is uncontradicted, for the employee was not called as a witness. It is true that when McLaughlin was pressed on cross-examination to say whether what appeared in the statement was a truthful account of the accident, he answered that it was, but this answer must be received in connection with the answers which immediately preceded it in determining whether in view of it the case should not have gone to the jury. When the witness was first asked whether the statement to which he had appended his signature was correct his answer was, “If my signature is there, it must be correct.” This, however, must be taken in connection with his uncon-tradicted statement that he had not read the paper and it had not been read to him, and when his answers are so considered, a fair inference to be drawn from them is that all he intended by them was that he had no recollection
Reference
- Full Case Name
- Danko v. Pittsburg Railways Company
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- 24 cases
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- Published
- Syllabus
- Negligence — Streét railroads — Evidence—Signed statement — Discrepancies — Credibility of witness. 1. Where in an action to recover damages for personal injuries the testimony in chief of the only witness called by plaintiff to describe the accident makes out a clear case for the jury, but on cross-examination he is confronted with a statement which he signed two days after the accident, at the instance of an employee of the defendant company, and radically inconsistent with his testimony in chief, of which statement he says “If my signature is there, it must be correct” but which he testifies without contradiction he signed without reading or knowing its contents, the credibility of the witness is for the jury, not the court, and if a verdict has been found for plaintiff it is error for the court to enter judgment for defendant non obstante veredicto. 2. In such a case, the duty of the court is limited to calling the jury’s attention to the discrepancy between the written statement and the testimony of the witness in chief, and to properly cautioning them as to their duty in passing on his credibility. 3. When on part of the testimony of a witness a plaintiff is plainly entitled to go to a jury, while on the other part of it he plainly is not, or when the different parts of the testimony of a witness are apparently inconsistent, leaving it uncertain just what his recollection of the facts respecting which he testifies is, it is the province of the jury to reconcile the conflicting statements, whether of the same or different witnesses, or to draw the line between them and say which shall prevail.