big hole on the other side. And then there were several smaller holes -- I don't remember how many of the smaller ones -- cutting the casing.
'Q. Do I understand you had lost your brakes after the collision?
* * * * * *
'A. I had lost the brake on the engine.
'Q. And how many cars were with you when you finally stopped? A. I had one car when I stopped.
'Q. Now, Mr. Hodges, in showing us and telling us what you did, you demonstrated to the jury and then you made a loud hissing sound a while back. Now what I would like you to tell us is what you did, what were you doing when you made this motion and made that -- A. When I pulled that emergency, I just grabbed the handle and pulled it right around as far as it would go, and it said, 'Pshowie.'
'Q. Was that the brake going into emergency? A. That is the brake going into emergency.
'Q. And did you feel the brake take hold? A. I felt the brake take hold, yes, sir.
'Q. Did it slow the engine down? A. It slowed the engine down some, yes, sir.
'Q. Now where was the engine and where were you when you first realized that the vehicle or the equipment on the track wasn't moving? A. That was while I was blowing the first blast of the whistle. I hadn't had a clear view yet. I couldn't tell whether he was moving or not. I leaned forward. And while I was leaning forward, it was about the end of the first blast of the whistle, or possibly the beginning of the second -- but I think the end of the first blast of the whistle -- I saw they were not moving.
'Q. And how soon after that did you throw it into emergency? A. Just as soon as I could grab the handle and pull it around there.'
The testimony of the fireman was similar:
'I started to sit down and glance ahead, and I observed something there. And this involved a couple of seconds here and there. I saw something ahead in the vicinity of the road crossing. I mean by that, you can't determine exactly whether or not it was on the road crossing, at that distance, until you have taken a second look, so to speak.
* * * * * *
'A. So upon seeing this object, I naturally would take a second look. And, like I stated a moment ago, it is not unusual to see some vehicle in that vicinity of that crossing. But at the same time you can't immediately assume that something is on the track and holler to the engineer to throw it in emergency, and possibly endanger the people on the train.
'Q. Tell us what you did or saw, sir. A. As soon as I saw it, I looked the second time and whirled to holler at him.
'Q. To holler at whom? A. My engineer. And almost then just spontaneous -- in fact, he sort of beat me to it -- he hollered, 'There is something on the track,' or something of that nature. And I remember hollering 'Yes', or 'Yea', or something like that. And at the same time, I believe, as near as I can recall, he says, 'It is not moving,' and just immediately the brake was dumped.
'Q. The brake was 'dumped'? A. That is an expression. It was thrown in emergency. We say 'dumped'. It lets the air escape.
'Q. Did you feel the brake take hold? A. Yes, sir.
'Q. Could you tell whether the train slowed down between the time the brake was thrown and the time of the collision? A. Yes, it slowed down.'
It must be emphasized that in weighing the actions of the engineer and the crossing watchman, we are dealing with events that rapidly succeeded each other kaleidoscopically in a matter of seconds and in a moment of emergency when there was no time or opportunity for calm reflection or careful deliberation. They should not be weighed in the light of hindsight. Then, too, as a matter of human psychology, allowance must be made for reaction time and following that, there must be an interval, no matter how brief, before a mechanical device responds to the person who brings it into operation. The evidence does not justify a finding that there was any carelessness on the engineer's or the watchman's part, or that they should have acted otherwise than they did. Moreover, it would be unreasonable for a jury to find that whenever a train engineer observes a vehicle at an intersection some distance away, he has no right to assume that it is moving and will clear the crossing in due time, but must slow down and even bring the train to a stop. Modern railroading would be impracticable and train schedules could not be maintained if such a practice were imposed on the operation of trains.
There is no evidence that it is the standard or the customary practice
Continuous experience with trials by jury leads to a mounting sense of admiration of the results attained by them, and of the type of justice that is generally meted out in this manner. This writer is of the opinion that juries infrequently make mistakes and he rarely sets a verdict aside. Nevertheless, no human being is infallible. All occasionally make mistakes. For this reason, rulings on questions of law by trial judges are subject to review by appellate courts, while results of jury trials are subject to correction on motions for a new trial. This court is of the opinion that in this case the verdict of the jury was unreasonable and contrary to the overwhelming weight of evidence.
The motion for judgment notwithstanding the verdict is denied, and the alternative motion for a new trial is granted on the ground that the verdict was contrary to the weight of evidence.