#### Kelley, Appellee and Cross-Appellant, *v.*Columbus Railway, Power *&*Light Co., Appellant and Cross-Appellee.

(Decided March 13, 1939.)

*Messrs. Schwartz &*Gurevitz, for appellee and cross-appellant.

*Messrs. Henderson, Burr, Randall S Porter*and *Mr. Lawrence Stanley,*for appellant and cross-appellee.

Hornbeck, P. J.

This is an appeal on questions of law. The action was for personal injuries claimed to have been suffered by plaintiff as a passenger of a street car by its sudden and unexpected movement while he was boarding. The answer of the defendant was a general denial with an affirmative defense of contributory negligence in that the plaintiff boarded the car after it was in motion. This affirmative defense was denied in the reply.

The cause was submitted to a jury, resulting in a verdict for the plaintiff. Defendant moved for a directed verdict at the conclusion of the case, for a judgment *non obstante veredicto*and for a new trial. The trial judge sustained the motion for a new trial, but overruled the other motions. The appeal is from the order overruling the motions of defendant for directed *398verdict and for judgment notwithstanding the verdict.

The defendant’s contentions that the court should have sustained its motions are well summarized in its brief:

“The plaintiff’s evidence is not credible — is not worthy of belief — because: (1) His testimony as to how the accident happened is physically impossible. (2) His uncorroborated testimony that.he attempted to board the street car when stopped, is directly contrary to the statement that he gave in the presence of a court stenographer two days after his accident, at which time he said repeatedly that the street oar was moving when he tried to hoard; these admissions are not and can not be denied. (3) His testimony is flatly contradicted by the testimony of eight eyewitnesses, three of whom saw him running after the street car— the other five said plaintiff was not in that vicinity when the street car started, including two ladies who boarded at that stop. ’ ’

There is a cross-appeal by the plaintiff predicated upon the claim that the trial judge abused his discretion in sustaining the motion for a new trial.

This case was well tried and we have been favored with the opinion of Judge Leach, passing on the motions for new trial and for judgment *non obstante veredicto,*with which we are in accord.' It is not our purpose to restate at great length and in detail the contradictory testimony of the several witnesses.

The plaintiff is a man 60 years of age, employed as a hostler with the N. & W, Railway Company. He lives at 2273 Indiana avenue, city of Columbus, which avenue is between Indianola avenue and Summit street, west of Summit. The plaintiff’s working trick began at three o’clock and ended at eleven o’clock p. m. G-oing to his work he regularly boarded a southbound Summit street car which was due at about two o’clock p. m. Summit street is a thoroughfare run*399ning north and south with a northbound and southbound street car track thereon. Oakland avenue intersects Summit street from the east and west and we will for the purposes of this opinion designate it as East Oakland and West Oakland avenue. The place where Oakland avenue intersects Summit street from the east is about 92 feet from the place where it intersects it from the west, this measurement being made from the south curb line of East Oakland avenue projected into Summit street to the north line of West Oakland avenue projected into Summit street. The car stop for southbound traffic is about 56 feet from the north curb line of West Oakland avenue projected. There is no traffic light at the intersection of East Oakland avenue and Summit street but there is such a light between the north and southbound street car tracks in the center of the intersection of West Oakland avenue and Summit street.

It is the claim of the1 plaintiff, supported by his testimony, that on the afternoon of February 3, 1936, at about 1:45 p. m. he left his home, accompanied by a Mrs. Houehins, walked at an ordinary gait to the north side of West Oakland avenue, and proceeded on West Oakland avenue to Summit street then north on Summit to a place opposite the intersection of East Oakland and Summit; that he saw' the car coming about half a block north; that two women were waiting at the regular stop and they started from the sidewalk to take the car as it was approaching; that he did not follow them immediately because of an oncoming automobile which he permitted to pass; that he then followed the women; and that he boarded the car, had caught hold of the grab iron on the side thereof and as he started to get onto the front or bottom step the car began to move and as he was moving on up to step into the vestibule it “gave an awful lunge,” threw him around against the side and though *400he held on for a second or two he was shaken loose and hit the ground causing a broken hip and other severe injuries. He further testified, and this was corroborated, that he fell a few feet north of the traffic light. His position is variously fixed by the witnesses as in the middle of the southbound track, across the east rail, and between the west rail and the curb of Summit street.

The plaintiff was taken to a doctor’s office where he remained five or ten minutes and was then removed to Grant Hospital.

It is the claim of the defendant that the plaintiff did not board the car at the regular stop; that it was moving into the intersection at Oakland avenue near the traffic light at about the time plaintiff was proceeding on the north side of Oakland avenue and before he.arrived at the intersection; that he ran into the intersection to catch the car and reached for the grab iron while the car was in motion; that he missed it and fell, probably because of the slippery condition of the street and the speed of the car; and that he fell under the traffic light and about 63 feet south of the car stop sign.

The controlling factu'al question is whether the plaintiff boarded the oar while it was at a standstill or after it was in motion. There is direct and inferential conflict between the plaintiff’s and the defendant’s witnesses in all the particulars heretofore set forth. The two witnesses who say that they saw plaintiff running to catch the car are contradicted by the plaintiff, and his evidence at the trial is at variance with parts of his statement in the hospital.

The one witness who says that she saw plaintiff cunning a>t a distance of three-fourths of a half block or 100 feet away is contradicted by Mrs. Houchins who says that at 60 feet away she saw plaintiff moving leisurely toward the car and by Mr. Douglas who *401testifies that he observed the plaintiff moving at a moderate rate at a place which was a distance of a hundred feet away.

If Miss Bragg had attempted to fix the distance in feet only that she saw the plaintiff run, we would readily concede that she might have been mistaken because of inability to accurately measure distances in feet but when she says further that it was three-fourths of a half block, this is support for her estimate that it was a hundred feet and probably more.

There are, of course, other, phases of the testimony which we could discuss, some of which support the claims of the plaintiff and others the theory of the defense.

The legal question presented is whether, upon this record, the trial judge erred in refusing to sustain the motion for directed verdict at the conclusion of the whole case and for a judgment *non obstante veredicto.*

It is urged with much conviction and ponsiderable force that the uncontradicted physical facts in the case are such that the accident could not have occurred in the manner asserted by the plaintiff, because of the place where he fell. This claim is predicated, first, upon an assumption that the physical facts are established. With this we can not agree without modification, but if it be granted that the plaintiff fell where counsel for the defendant say, even so we would not feel justified from that fact and other known physical facts in determining that the accident could not have occurred in the manner claimed by the plaintiff.

The obligation now fixed by the statute, Section 11601, General Code, is the same on a motion for directed verdict as on motion for judgment notwithstanding the verdict. The court may now consider the evidence adduced and is not restricted to the pleadings in entering judgment notwithstanding the verdict as *402before the amendment to Section 11601, General Code, which now reads:

“When, upon the statements in the pleadings or upon the evidence received upon the trial, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, although a verdict has been found against such party and whether or not motion to direct a verdict may have been made or overruled, but no judgment shall be rendered by the court on the ground that the verdict is against the weight of the evidence.”

It will be noted that a judgment may not be entered upon a finding that the verdict is against the weight of the evidence. The trial judge determined that this verdict was against the weight of the evidence only, and if correct in this conclusion, the motions of the defendant were properly overruled.

When the scintilla rule was effective there was a clear and definite distinction between the test which a trial judge should apply to the evidence to determine if a cause should be submitted to a jury and if a motion for a new trial should be sustained. In the former if the plaintiff had produced any evidence on all material elements of his case the cause was rightly submitted to the jury but if the verdict of the jury was unsupported by the evidence, even though the case was properly submitted to the jury, the motion for a new trial was properly sustained.

The court abolished the scintilla rule in *Hamden Lodge*v. *Ohio Fuel Gas Co.,*127 Ohio St., 469, 189 N. E., 246, which had been certified as a conflict case. It was thus appropriate that the court speak on the status of the scintilla rule in Ohio, but a reading of the facts in the *Hamden Lodge case*is convincing that the rule could have been applied without modification and the same judgment reached. Certainly upon every test set forth by the writer of the opinion the plaintiff *403belo-w bad produced no testimony wbicb would justify the trial judge in submitting the ease to the jury for determination. However, the scintilla rule is abolished in the second paragraph of the syllabus and the new rule stated in the second, third and fourth paragraphs of the syllabus of the case.

The third and fourth paragraphs read:

“3. Upon motion to direct a verdict the party against whom the motion is made is entitled to have the evidence construed most strongly in his favor. But if upon any essential issue, after giving the evidence such favorable construction, reasonable minds can come to but one conclusion, and that conclusion is adverse to such party, the judge should direct a verdict against him.

*“4.*Where from the evidence reasonable minds may reach different conclusions upon any question of fact, such question of fact is for the jury. The test is not whether the trial judge would set aside a verdict on the weight of the evidence.”

It is somewhat incongruous to announce that upon certain proof a question of fact is one for a jury and immediately thereafter say that the test is not whether the trial judge should set aside a verdict on the weight of the evidence. If a court- weighs the evidence, determines that reasonable minds may reasonably differ upon its probative effect and thus make it a case for the jury, that is, for its determination, how can it be said that the verdict which that jury reaches may not be sustained because not supported by the weight of the evidence? The only answer is that the trial judge weighs the evidence twice and with different balances, one of which when reached takes the case to the jury, another, of greater weight, is required to support the verdict returned by the jury.

We do not find that the Supreme Court in any sylla*404bus of any case has expressly said, that a motion for new trial, directed to the weight of the evidence, should not be sustained if the state of the record is such that reasonable minds may differ upon any controverted material question — the test now fixed to take the case to the jury — 'but it has used language of that import and effect. As early as *Webb*v. *Protection Ins. Co.,*6 Ohio, 456, it was said that only when a verdict is palpably against the evidence or decidedly against it are courts warranted to set it aside. And in *Cleveland & Southwestern Traction Co.*v. *Garnett,*18 C. C. (N. S.), 215, 28 C. D., 426, affirmed without opinion, 81 Ohio St., 483, 91 N. E., 1127, the court said that before a verdict may be set aside it must appear that it is clearly wrong, and in *Palmer & Son*v. *Cowie,*7 C. C. (N.S.), 46, 17 C. D., 617, the court said that before a verdict should be set aside as against the weight of the evidence it must be so manifestly against the weight of the evidence that “unbiased, unprejudiced minds could not, from the evidence, have reached the conclusion which was reached by the jury. ’ ’

Discussion of the question is found in 46 Corpus Juris, 178, Section 136, where this statement is made:

“Where the evidence was so conflicting that different persons might honestly and intelligeiitly have formed different conclusions therefrom * * * the verdict should be allowed to stand * *

Supporting this proposition there are cited several hundred cases from states other than Ohio and two cases from Ohio. *Armstrong*v. *C., M. & L. Traction Co.,*10 N. P. (N. S.), 581, 23 O. D. (N. P.), 215, and *Schmalstig*v. *Taft,*19 N. P. (N. S.), 513, 518, 27 O. D. (N. P.), 313, where the same test was applied to hold that a motion for new trial should be overruled as set • forth in the *Hamden Lodge case*to determine whether a motion for directed verdict should be sustained. *405The Supreme Court of Kansas states the rule in somewhat different language:

“Where the question is absolutely doubtful, where some men would naturally come to one conclusion and others to the opposite, then the verdict of the jury is conclusive.” *Johnson*v. *Leggett,*28 Kan., 590, 607.

It may safely be said that outside of Ohio the cases cited in Corpus Juris, to which we have heretofore referred, support the theory that the rule there applied to a motion for new trial on the weight of the evidence is the same as now set out in the *Hamden Lodge case*on a motion for directed verdict.

Another inquiry arises by the enactment of Section 11601, General Code, which expressly precludes the entering of judgment on the ground that the verdict is against the weight of the evidence. This section, as it now reads, was enacted subsequent to the decision in the *Hamden Lodge case.*If the court, under the rule there announced, weighs; the evidence in entering judgment, it is in conflict with the terms of Section 11601, General Code. We are not required to determine this question because the trial judge did not sustain the motion for a directed verdict, or for judgment notwithstanding the verdict. But the Supreme Court having said that there is a difference between the *quantum*of evidence essential to take a case to a jury and to support a verdict against the motion for new trial on the weight of the evidence, we must give recognition to that determination. How then, upon that test, does this case stand? Here the conflict is not that of inferences but in direct testimony. It is in the field of credibility. No fact is developed in this case which refutes the claim of the plaintiff with certainty. His inconsistent statements go only to his credibility and are no evidence of the facts therein contained. *Kent*v. *State,*42 Ohio St., 426; *State v. Kerlin,*51 W. L. B., 317. What he says may be true although in *406the judgment of the trial court the probabilities are against it's truth.

There are, in our judgment, two cases in Ohio which are helpful and determinative, *Painesville Utopia Theatre Co.*v. *Lautermilch,*118 Ohio St., 167, 160 N. E., 683, and *Pope, Admx.,*v. *Mudge,*108 Ohio St., 192, 140 N. E., 501. In the former case the plaintiff sought a verdict predicated upon the negligence of the defendant in failing to keep a door locked or to warn the plaintiff of its presence as a result of which she entered the door and fell into a basement and received injuries. The defense was contributory negligence of the plaintiff. Judge Robinson in the opinion points out that the plaintiff at certain places in her testimony indicated that she fell as a result of advancing into an unlighted stairway after- she had opened the door, whereas, in other places it appeared that the opening of the door and the falling into the stairway were simultaneous actions. In this situation the court said in the syllabus:

“Whenever, from conflicting evidence of the same witness or of different witnesses, it becomes necessary to weigh such conflicting evidence to determine wherein the probable truth lies, or from a combination of circumstances determine an ultimate fact upon the determination of which different minds might reasonably arrive at different conclusions, it is the province of the jury to perform that function. It is reversible error for the court to invade that province of the jury.”

In *Pope, Admx.,*v. *Mudge, supra,*it was essential to Pope’s recovery that he prove Mudge defrauded him. One of the elements of fraud which it was essential that Pope prove was not only the misrepresentation made by Mudge but that he relied upon the representation and was deceived thereby. The deposition of Pope was taken while he was in a weakened con*407dition, physically and mentally. In the deposition in response to a question Pope asserted that he did not believe the misrepresentation charged to Mudge. Upon this express statement the trial court directed a verdict against Pope because upon his own admission he was not deceived by the misrepresentation made to him. The Supreme Court reversed this decision and said the cause should have been submitted to a jury. Although the first paragraph of the syllabus is probably overruled by the *Hamden Lodge case,*though the case is not included in the list of cases therein expressly disapproved, the second paragraph has not been disturbed. It is as follows:

“If, in ruling upon a motion to direct a verdict, the court is required to detect the truth from conflicting evidence of the same or different witnesses, the motion should be overruled. ’ ’

Although the *Hamden Lodge case*has clarified the law as to the scintilla rule it has projected another and different proposition as to the measuring stick to be applied by the trial judge in determining when a motion for new trial should be sustained as against the weight of the evidence.

It is our opinion that the trial judge reached the proper conclusion in this case in overruling the motions of defendant.

We have discussed the questions urged on the appeal more at length than those urged on the cross-appeal, but we have likewise given attention to the brief on ■ the claim that the court erred'fn sustaining the motion for a new trial. We find no support for holding that the trial judge exceeded his discretion in sustaining the motion and, in view of the conclusion that we have reached respecting the test to be applied in determining a motion for a new trial, we find no error prejudicial to the plaintiff by the action taken.

*408The judgment will be affirmed.

*Judgment affirmed.*

Barnes, J., concurs.

Geiger, J., concurs in judgment.