The Preponderance of the Evidence
‘MARY HENDERSON vs. Valley Mills Street Railway Co. Hamilton for plaintiff, Brown for defendant.’ The judge looked up from his docket and, gazing over his spectacles, swept the assembly of attorneys seated inside the railing. ‘What says the plaintiff?’ he added.
‘The plaintiff is ready, Your Honor,’ said a tall young man, rising to his feet.
‘Is the defendant ready?’ asked the judge.
Counsel for defendant slowly rose to address the court. Ease and confidence of manner and the tailor-made cut of his clothes marked Brown as one of the fortunate old lawyers whose corporation clients paid fat fees and paid them with promptness and regularity. His whole appearance and attitude of composure were in marked contrast to young Hamilton’s, whose fee was contingent upon success.
‘Will your Honor indulge me a moment while I consult with plaintiff’s counsel?’ asked Brown. And without awaiting the judge’s reply, he turned to Hamilton and whispered an offer of five hundred dollars in settlement of the case.
Hamilton turned to his client, with a look that suggested a willingness to settle.
‘Better take that than nothing,’ Brown persisted; and half addressing his words to the lady, he added with assurance, ‘The evidence against you is overwhelming. You cannot possibly secure a verdict. But the company will donate that sum.’
‘Mr. Brown,’—the lady’s words came with a determination that cut off hope of compromise, — ‘I am not seeking a donation. I want this case to be tried.’
‘All right; you ’ll get a trial,’ returned Brown. Then, addressing the judge, ‘The defendant is ready.’
‘Give the parties a list of the jury,’ said the judge; and after a few general questions to the panel as to their employment by the street railway, Hamilton sat down, and Brown, holding the list in one hand and his glasses, attached to a slender gold chain, in the other, advanced to examine the jury.
‘Mr. Kennon, have you any prejudices against railway corporations in general, or against this defendant in particular? ’ With great solemnity this question was addressed to each juror, until the interminable repetition firmly established the conviction in the minds of all the jurors that such a prejudice was the suppressed attitude of every normal man in the community.
No confession of prejudice appearing, Brown began to examine the whole panel with another question: ‘Can you and will you disregard any and all sympathy in this case and base your verdict entirely upon the preponderance of the evidence?’
This question and the plaintiff’s crutches leaning against her chair immediately aroused legitimate waves of sympathy in the hearts of all the jurors. Young Hamilton nervously suggested that time might be saved by asking the question of the entire panel collectively; but Brown replied that the ‘whole case rested upon the pre-pon-der-ance-of-thetes-ti-mo-ny,’ and he wanted every juror to take his oath with this rule of law in mind. The court sustained Mr. Brown, and every individual juror had the question propounded to him, and every last one of them swore to disregard sympathy and consider the cruel evidence alone.
‘ What do you think of the jury?’ said Brown to Harris, the claim-agent, when they had the list before them out in the hall.
‘I would scratch them all if I could,’ impatiently replied the claim-agent. ‘They are all from the country, and I don’t know one of them.'
‘Well, I don’t care where they come from. No jury on earth can ever get away from our testimony.’ Thereupon Brown scratched six jurors at random and returned the list to the clerk. Not a scratch appeared on Hamilton’s list.
The clerk called the first twelve men and swore them to ‘ render a verdict according to the evidence heard from the witness-stand and the law as given you in the charge by the court.’
Hamilton read his pleadings to the jury: Plaintiff, Mary Henderson, while getting on a street car of defendant, was thrown from the step to the street and broke the bones of her leg in several places and also the ankle of her foot — ‘all through the negligence of defendant and its servants in causing or allowing the car to move or jerk while she was getting on; so that she suffered great pain and lost the use of her leg, and her capacity to earn money as advertisement-solicitor, to her damage in the sum of twenty-five thousand dollars.’
Brown read a general and sweeping denial of ‘each and all the allegations in plaintiff’s petition contained,’ and sat down.
Hamilton suggested to the court that he would like to have the witnesses excluded from the courtroom.
‘Plaintiff has invoked the rule,’ the judge said, looking at Brown. ‘Call your witnesses.’
The claim-agent ushered in an array of men whom Mr. Brown, with considerable pride and many glances at the jury, grouped in the shape of a crescent about the clerk’s desk. ‘We have twenty-four, Your Honor,’ he said.
‘Very well,’ replied the judge. ‘And where are your witnesses, Mr. Hamilton?’ he asked, with a slight accent of impatience.
Hamilton turned to his client and assisted her to her crutches. She penetrated the crescent and stood before the clerk, her hand raised to take the oath. She was tall and thin. Her black dress and hat accentuated the pallor of her face, where sorrow and pain seemed about to vanquish the beauty that comes to every woman. But she was not old; and her cold blue eyes and thin lips spoke a large degree of purpose and decision.
‘Have you no other witnesses, Mr. Hamilton?’
‘The plaintiff is the only witness, Your Honor.’
Hamilton sank back in his chair, conscious of a sensation of helpless sympathy that seemed to vibrate in the atmosphere of the courtroom.
The judge leaned forward for a moment and began to whirl a pencil on his desk. The lawyers all knew the significance of that slight gesture. The judge was not moved by any emotions of sympathy. He was impatient.
Brown nudged another lawyer and whispered in his ear: ‘See the judge? He’s got his eye on the preponderance of the evidence.’
‘Mr. Brown,’ — the judge stopped the whirling of his pencil, — ‘let me understand the issues clearly. The plaintiff says she was injured through the negligent moving of the car as she was getting on. You have numerous witnesses here. Do they deny the moving of the car, or the injury?’
‘Our testimony’ —Brown swept his hand toward his array of witnesses — ‘will be confined to the moving of the car. We deny that it moved.’
‘A very simple issue,’ said the judge, leaning back in his chair, his eyes fixed upon the ceiling.
The witnesses all raised their hands and swore before God to speak ‘the truth, the whole truth, and nothing but the truth,’ and were ushered out of the courtroom.
‘ Miss Henderson will take the stand,’ suggested Hamilton, as he helped his client to her crutches and conducted her to the witness-stand, the jury leaning forward with morbid curiosity to watch her as, with difficulty, she ascended the steps and manipulated the crutches on the small platform.
Hamilton’s examination went straight to the point in the suit.
‘I was standing at the transfer station when my car came in.’ She spoke clearly and directly to the jury. ‘ It was about noon. A great many other persons were also waiting for the car. I had a package in each hand — purchases that I had just made down-town. The car stopped and I got on the step; just as I was in the act of taking the next step, the car suddenly moved, and as I was standing on one foot, with my hands full of bundles, the jerk threw me from the step to the ground.’
She described the agony that she had suffered ever since; and by an X-ray photograph taken a few days after the accident, Hamilton showed the jury that the bones of her leg had been broken in several distinct places and that one of the fractures ran into her ankle. ‘I cannot put this foot to the ground. I could not bear the pain. For seven years I have been an advertisementsolicitor. I have earned good money: some months over five hundred dollars. I do not believe I shall ever earn another dollar.’ Her voice began to choke, her eyes began to fill, and she turned her head to use her handkerchief. Having recovered control of her feelings, she turned again, and after running her eyes over the jury a moment, said, ‘Pardon me, gentlemen, but I have n’t that control over myself that I used to have. I would n’t care so much for myself. But what will become of— ’
‘We object! Wait a minute! Don’t say another word.’ Brown was on his feet, waving his hands and shouting to drown her voice. He knew that her old mother, sitting at the end of the courtroom, was wholly dependent on her. ‘Your Honor, we object to that sort of testimony.’
‘What is the objection? I did not hear the witness, ’ replied the judge. ‘The stenographer had better read the answer.’
Brown was embarrassed. Further discussion might reveal the very fact that he was attempting to conceal.
‘Never mind,’ said he, ‘we had better proceed.’
But the objection had done its work. The jury were discreetly whispering questions among themselves: ‘What did she say? What is going to become of who?’
Hamilton rose. ’Your Honor, we tender the plaintiff for cross-examination.’
Brown leaned back to the claimagent and consulted in a whisper. They agreed.
‘Your Honor, we have no questions,’ said Brown.
Hamilton stepped forward and assisted his client back to her chair. Crossexamination had been waived. Her testimony had been ignored as wholly unworthy of belief. He had hoped that cross-examination would strengthen her story. He had asked her very few questions, and he had no other evidence. He felt the utter want of convincing proof of his case. She swore that the car had moved. And there were twenty-four men out in the hall who would contradict her. He attempted to place one of the crutches under her arm, and dropped it from the witness-stand to the floor. He recovered the crutch and held his client as she descended from the stand. As he looked up at the jury, he felt an assurance of sympathy; but he felt also that they were demanding more proof. And he had no other proof. She sank into her chair. He stepped forward and sat down. He knew that he must announce the fact that he rested his case. But he could not muster courage.
‘Mr. Hamilton,’ — the sharp accents of the judge struck upon his ears, — ‘proceed with the case.’
Brown rose from the opposite side of the table. ‘I presume, Your Honor, that plaintiff rests. No other witnesses were sworn. He has failed to make out his case. At this time, therefore, we wish to move the court to instruct the jury to find for the defendant.’
The motion was presented with an air of perfect indifference as to the ruling that might be made by the court.
‘Mr. Brown, I may have my opinion, but I will not comment on the evidence at this time. The plaintiff’s testimony makes out a prima facie case. It is a case for the jury. Proceed with your witnesses and the jury will decide the issue.’
The claim-agent went into the hall and returned with the conductor who was in charge of the car when Miss Henderson had an accident. He told a straightforward story. The car had just returned from a trip out to the Fort. The passengers had all alighted from the car. ‘ We were at the terminal, getting ready to turn back for another trip. I took the trolley-cord and pulled the trolley off the wire. When I had gone about half-way round to the end where the new passengers were getting on, I heard a scream and saw a woman fall from the step to the street. That is all I know.’
The judge was sitting very erect, with his arm resting on the bench. The jury were leaning forward in their seats. Every eye was intent on the witness. Then Brown, bending forward with his elbows on his knees, asked the conductor in a distinct but quiet voice, ‘Was the car moving or standing still?’
‘It was standing still,’ came the answer, in a tone of apology for contradicting a lady, but of positive affirmation of a fact. ‘It could n’t move. It had no power. The trolley was off. I was holding it with my own hands.’
Brown swayed back in his chair. ‘Take the witness,’ he said, with infinite assurance.
Hamilton tried to collect his wits. This witness was an employee. His testimony would be colored by his zeal and interest for bis employer. But how could he escape the fact that the trolley was off the wire?
‘You are still in the employ of the company?’ he asked.
‘And you did not see the car move?’
The testimony was so positive that it stopped Hamilton’s mental inquiry as to circumstances tending to corroborate his client’s statements.
‘That’s all,’ he said.
The claim-agent brought in another witness, the postmaster of Valley Mills. He saw the accident.
‘ I was on my way home. I was preparing to get on the car. Fifteen or twenty other people were all crowding to get on. Probably a hundred people were waiting at the terminal to take various cars. The lady got on ahead of me and fell from the steps with a scream. Mr, Carter, the City Auditor, raised her from the pavement; but she could not stand up. She seemed to be in great pain.’
‘Was the car moving or standing still?’ came Brown’s impressive question.
‘It was dead still,’ deliberately asserted the postmaster.
Hamilton felt his courage oozing away. He remembered the rule taught at the law school, not to ask a question unless it had a definite purpose.
One after another the claim-agent produced witnesses from the hall. The City Auditor and three of his assistants all stood at the door of the car, and one of them raised the young woman from the ground when she fell. Merchants, mechanics, laborers, and a teacher of the public schools — all had been bystanders waiting to enter the car, and every one of them testified that the car did not move. Brown’s questions to the witnesses became brief and uniform:
‘ Were you present at the time of the accident? Was the car moving or standing still? ’ Their answers were uniform. It was evident that they had no interest in the outcome of the suit. There seemed to be but one conclusion: the car was standing still, and in Hamilton’s mind, the argument that followed this conclusion was that his client had testified falsely. She had a vital interest in the case. And he also was interested. He had a half-interest in the suit. His fee depended upon success.
Witness after witness testified. Hamilton had ceased to undertake any cross-examination. At first, his client had urged him to test the witnesses: Were they certain the car did not move? She whispered her remonstrances to him in a voice that at times reached the ears of the jurors in the first row of the box. ‘Ask him if he means that the car did n’t move or that he did n’t see it move.’ And they answered that they did not see it move.
Hamilton was beginning to accuse himself of complicity in manufacturing the testimony that his client had rendered. He saw the venerable judge restlessly whirling his pencil between his long, lean fingers, and raising his eyes occasionally with a look that seemed to speak of fraud and perjury in more certain terms than any indictment by a grand jury could ever have done. Hamilton felt that the responsibility for this irreconcilable conflict between the evidence of his client and that of the defendant’s host of witnesses would be placed entirely upon him. He wanted the esteem, confidence, and respect of court, lawyers, jury, and men. This trial would identify him with the worst type of shysters and disreputable practitioners of the law.
The clock began to strike twelve. The judge interrupted the examination of a witness and took a recess for two hours. The crowd began to move out, and Hamilton, though impelled to move away with them, was restrained, not by a sense of duty to his client, but by a sense of humanity. He gathered up her crutches.
‘Let’s go,’ he said.
‘No; sit down a minute,’ she answered without rising, and tapped the seat of his chair with the end of her finger. ‘Sit down. I want to talk to you.’
Hamilton was startled by the peremptory decision of his client’s voice. He sat down and gathered up his papers as the crowd filed out of the courtroom.
‘Mr. Hamilton,’ she began with perfect deliberation, ‘it is quite apparent to me that you have lost faith and interest in my case. It is true, I have paid you no fee. But when you undertook this suit, you offered your services and asked for a half-interest in the verdict of the jury. You have ceased to render services, and I demand the return of my contract.’
With these words Miss Henderson reached over for a crutch and rose from her chair.
Hamilton was overcome for the moment with a grateful sense of relief. Withdrawal from the suit had been contemplated by him as the witnesses rendered their unvarying testimony. It would involve an embarrassing situation, and possibly the judge would require unbroken fidelity to his client. But her own suggestion brought the desired consummation.
‘After hearing twenty-four witnesses who absolutely contradict you, Miss Henderson,’ Hamilton answered, as he rose and handed her the other crutch, ‘you cannot blame me for being discouraged.’
‘Discouraged?’ The lady braced herself firmly on the handles of her crutches and slowly raised her chin with an expression of disdain. ‘Discouraged? Oh!’ And with that long-drawn-out vowel the storm broke. ‘ Courage never kept house in a man like you. Twentyfour witnesses! I don’t care if there were a hundred and twenty-four witnesses! Did n’t I say the car moved? Did n’t I see and feel the car move? Didn’t I fall? Didn’t it splinter my bones? ’ She slammed her open hand on the X-ray picture of her broken leg lying by them on the table. ‘I thought you had nerve and sand. Give me the contract.’
‘ The contract? ’ Hamilton stammered. He sat down by the table and began to search the file that he held under his arm. ‘Courage’ — ‘nerve’ — ‘sand.’ Was he without courage? Was he overwhelmed by the mere numerical superiority of Brown’s witnesses? Why deny faith to the affirmative account that she had rendered of the accident? After all, these witnesses — numerous as they might be — were giving only negative testimony. ‘Courage!’ He heard the word in a rising flood of emotions. He was not without courage, he assured himself. Had he not fought his way, single-handed and unassisted, through one of the best colleges of the land? Had he not undergone privations to train, educate, and prepare himself for his profession? For the moment he lost the sense of oppression that he had felt under the eyes of the judge, the jurors, and the crushing preponderance of the evidence from twenty-four witnesses. The fighting spirit of his client had taken possession of him. ‘Did n’t I see the car move?’
‘Miss Henderson.’ He closed his file, and rose and confronted his client. ‘I am going to make the best of the matter as it stands, unless you insist that I withdraw.’
‘ I don’t know what can be done now.’ She was relenting. She knew that her influence had invaded him. He was aroused, and the woman within her felt a warm sense of gratification. ‘They have two more witnesses. If you have any pep in you, show it. And if you can’t get anything out of them, don’t show the white feather. Remember, I have told the truth. I don’t know what made that car move; it moved — it moved. And the — angels — in — heaven — know — it — moved.’ She tapped the end of her crutch on the floor with every word of the sentence. ‘And you know it too, don’t you?’ she suddenly added, regarding him with a look in which triumph and a certain appeal seemed to mingle.
‘What we need now,’ Hamilton answered, ‘is to make the jury know it.’
‘Don’t worry about the jury. As long as you know it, and know it with all your might, the jury will know it.’
‘Well, then, I’ll make the jury know it,’ said Hamilton, as he waved his arms at the empty jury-box. ‘Oh, but there is the unbelieving heart,’ he added, as he shook his fist at the judge’s chair, and seized his hat. ‘Be back promptly at two o’clock.’
With this he hurried away through the hall and down the stairway, leaping two and three steps at a time. He ordered coffee and apple pie at a Chinese restaurant, and from the restaurant he walked over to the scene of the accident.
It was only a block from the courthouse. Three of the jurors engaged in the trial of the case were standing at the curb. A large crowd was waiting for cars, or embarking and disembarking on those that arrived and departed. Hamilton sat down on one of the benches and watched the jurors. They were idly observing the cars, the crowd, and the situation.
A car came in from a trip. The conductor alighted, seized the trolley-cord, and was working his way through the crowd alighting from the front end, when someone shouted, ‘Look out!’ Hamilton jumped up. He could not believe his eyes. The car was moving! Slowly, to be sure; but it moved. The people passing over the track surged back. Passengers in the act of alighting stopped in the door. Then the brakeshaft and cogs whirred, and the car stopped. It had moved several feet.
‘Did you see that?’ said one of the jurors to the rest of them.
‘Yes; and did you see where the conductor had his trolley-pole?’ exclaimed another.
‘Well, well; would n’t that jar you!’ said another, with one hand in his pocket and stroking the whiskers of his chin with the other.
Hamilton moved away from the jurors. He was elated; but he feared lest they might wish to engage him in conversation about the matter — in violation of the court’s instructions to the jury when the noon recess was taken.
‘What made the car move?’ he asked one of the street-car employees standing at the transfer station.
‘I guess the brake-chain slipped,’ he answered. ‘And it’s a little bit downhill there, too,’ he added, as he walked over to a car that was just arriving.
‘ Brake-chain slipped — down-hill,’ Hamilton muttered to himself. He was working at his problem. Here was a car that moved without a trolley-pole.
When the court reconvened, Brown called to the witness-stand a motorman. He related the circumstances of the accident very much as the conductor and the other witnesses had done. ‘ She was about the first passenger to get on. I was right there on the platform when she fell. I saw the conductor with the trolley-cord outside.’
‘Well,’ came Brown’s question, less dramatic than at first, but with perfect assurance, ‘ did the car move or was it standing still?’
‘It was standing still,’ was the answer; and with a wave of his hand, Brown tendered the witness to Hamilton, and relaxed in his chair.
Hamilton and his client were holding a whispered conference when one of the jurors rose and spoke: —
‘Your Honor; could I ask that motorman one question?’
The judge turned sharply. ‘It is bad practice to let jurors examine witnesses; they break the rules of evidence; but you may ask one question — just one.’
‘ Is there any way that the car could move at that place when the pole is off the wire?’
The motorman for a moment looked hard at the juror, who had remained standing. In fact, he was the object of general observation in the courtroom. Even his fellow jurors were turning in their seats to regard him — all but two, and these two had their eyes on the witness.
Suddenly the witness spoke up. ‘I don’t see how it could move. I had set the brake. It was standing still. Unless something bumped into it, I don’t see any earthly way for it to move.’
The juror remained on his feet, looking intently at the witness. Evidently he was not satisfied. The court recognized the argumentative, combative look in his eye and promptly intervened.
‘Your question has been answered, Mr. Juror.’ And one of the other two jurors pulled at his coat and, as he sat down, whispered to him, ‘That’s enough. He is a liar.’
Hamilton saw and felt the attitude of those three men. They were fighting with him. His voice and bearing had a ring of challenge as he leaned forward in his chair.
‘You say a car could n’t move at that place. Suppose you released the brake when the trolley was off?’
‘But I did n’t release the brake,’ the witness quickly hedged.
‘Answer my question.’ Hamilton sat up straight.
The jury was all attention, and the questioning juror most of all. The inquiry was personal with him.
‘Answer my question.’ Hamilton repeated. ‘If you release the brake at that place, trolley or no trolley, what will the car do?’
The witness was hesitating.
‘Well?’ urged Hamilton.
‘I have never released the brake.’ The reply came slowly. ‘I don’t know what the car would do.’
He looked over at the claim-agent for approval.
‘Now, Mr. Hill; that car had wheels? ’ Hamilton began to syllogize. ‘It certainly had.’
‘And a wheel will roll down-hill?’
‘If you turn it loose, it will.’
‘And the track runs down-hill where the car stood?’
‘Well,’—Hill shrugged his shoulders, —‘I guess there is a slight grade at that point.’
‘ Slight grade? Grade enough to make a car roll, is n’t there?’
‘Yes, without a brake; but I did n’t release the brake.’
‘Well, you just wait a minute. Forget about that brake.’
The zero hour had passed for Hamilton; he was going over the top. Three jurors and the determination of his client were right at his heels. He was no longer alone.
‘That car had a hand-brake?’
‘And the brake had a brake-chain?’
Hamilton’s knowledge of brakechains was nil. But his collective courage was sweeping him on.
‘ Have you ever seen a brake-chain ? ’
‘ Well; tell the jury what it is and how it works.’
‘ It is a chain on the end of the brakeshaft under the platform of the car. When you turn the brake-wheel on the end of the car, this chain slaps the brakes to the wheels. That’s all.’
‘Oh, no, that’s not all,’ Hamilton retorted quickly, as he observed the witness’s desire to end the description of the brake-chain. ‘Does that brakechain ever slip? ’
‘Oh, I don’t know.’ The witness was looking down and bouncing his pencil on the railing of the witness-stand. Nervously he added, ‘But I am sure it did n’t slip that time.’
‘ Well, let’s see about that. You know all about brakes and I want you to explain to the jury what makes the chain slip.’ ‘Why, when you put on the brake, the chain runs around the rod under the car, and sometimes it will run and double on itself till it slips back on the rod.’
‘Yes; and when it slips, the brake comes off the wheel!’
‘I guess so.’
‘ And if the ground is n’t level, the car will start up, won’t it?’
The witness made no reply. He looked rather limp.
‘No matter where the trolley is?’
Still the witness made no answer.
‘That’s all,’ Hamilton ripped out as he wheeled in his chair with a triumphant air and glanced over the jury. They were all alert and beaming with interest. And the man who had interrogated the witness was blazing with pride and gratified vanity. But Miss Henderson’s face was more radiant than any.
‘Mr. Hill,’ — Brown took up his witness, — ‘ did the brake-chain on this car slip?’
‘I did not notice it.’
‘Well, did it slip, or did it not slip?’ Brown broke upon the witness with some irritation. ‘ You were in a position to notice, were n’t you?’
‘No, sir; the car did n’t move.’
‘Call the next witness,’ Brown snapped out; and Harris mumbled something about ‘tying a can to that fellow.’
The next witness was an inspector, attached to the claim-agent’s office.
‘I was at the transfer station when the lady got hurt. When I first saw her, someone was holding her. The accident was all over. I hailed a taxi and sent her home in charge of an employee.’ The witness stopped.
‘Did you see her any more?’ Brown asked.
‘Yes, sir; about thirty minutes later, Mr. Harris, the claim-agent, and I went to the address she had given the taxi driver, and found her in bed.’
‘Well, what was done?’
‘Mr. Harris asked her a few questions; and one of them was, how the accident had happened. She told us that she did n’t know how it happened.’
‘Didn’t know how it happened?’ Brown repeated, in a tone of feigned surprise. ‘Well, what did she say about the car moving?’
‘She said nothing about that.’
‘Said nothing about the ear moving, or jerking, or starting up while she was getting on?
‘No, sir; she just said she did n’t know how the accident happened.’
‘That is all.’
Miss Henderson was whispering to Hamilton. ‘Leave that to the jury,’ he replied. But she tugged at his sleeve as he turned to take up the witness and whispered into his ear.
‘Yes—yes,’ he said audibly.— ‘Now, Mr. Wells, you say you got to Miss Henderson’s room about thirty minutes after the accident?’
‘Why did n’t you go with her at once?’
‘Well, it is my duty to investigate every accident and get a list of witnesses.’
‘Oh, you are the man who compiled this list of witnesses.’
‘Yes, sir; I am responsible for them.’
‘Now, will you tell me how you made up this list.’
‘Yes, sir,’ the witness replied with an officious air. ‘I ordered all cars to be held right there, so that no witnesses would leave before I could get their names. Then I took down the names and addresses of all those who saw the accident.’
‘Did you take the names of any others besides the witnesses who have testified here to-day?’
After a slight hesitation, the witness answered, ‘No, sir.’
‘Well, did you talk to any others?’
The witness halted considerably. ‘Yes, sir; I did.’
‘About a dozen.’
‘What did they say about the accident?’
‘Wait a minute there!’ shouted Brown, as he jumped up, staying the proceedings with open palm extended high above his head. ‘That is hearsay, your Honor, pure hearsay, and we object to it.’
Two rows of jurors were leaning intently forward.
‘The objection is sustained,’ promptly replied the court. ‘Don’t answer the question.’
‘You say you did n’t take down the names of these other witnesses?’
‘Do you rememberany of the names?’
‘No, sir; I don’t.’
‘Well, did any of them say that the car moved?’ Hamilton popped out.
Brown was up in a second, his face crimson with rage. ‘This is worse hearsay than the other. He wants to use before the jury here in court what men not on oath said out in the street.’
‘Mr. Hamilton,’ the court broke in severely, ‘this is hearsay testimony. I have just forbidden the same kind of question. If you repeat it, I shall fine you for contempt.’
‘Very well, Your Honor.’ Hamilton replied. ‘Nothing can be more convincing than the spontaneous declaration of a bystander. It is res gestae.’
‘It is too remote for res gestœ,’ the judge declared.
‘I shall not insist upon the answer,’ Hamilton added; for he saw that the jury had already supplied it.
‘Stand aside,’ Brown called to the witness. ‘The defendant rests.’
‘Have you any other testimony, Mr. Hamilton?’ asked the court.
‘None, Your Honor.’
‘ Very well. — Gentlemen of the Jury,’ the judge began, ‘in order that you may not be confused as to the real issues, and to concentrate the argument, I will instruct you now and counsel can follow with their arguments. This is a very simple case. The only question for you to decide is, whether or not the car moved and caused the plaintiff to fall. If it did, you will allow her such a sum as will reasonably compensate her for pain suffered and lost earning capacity. If it did not move, your verdict will simply be for the defendant. The burden is on the plaintiff to prove her case by a fair preponderance of the evidence. And this is difficult to define. It does not necessarily depend upon the number of witnesses. But, in general, it means that when you consider all the testimony before you, you will be fairly convinced that her allegations are true. You are the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony.’ Then, turning to Hamilton, he said, ‘Proceed with the argument.’
Hamilton promptly addressed the jury, reviewing briefly the testimony given by his client as to the manner of the accident, and claiming a substantial verdict, proportioned to her utter helplessness and the financial loss she had sustained thereby.
‘I should like to hear Mr. Brown’s estimate of the significance and weight of his testimony. I shall answer him in my closing argument.’
He had consumed about five minutes.
Brown stepped forward, laughing. He stood erect a moment. His face became serious as he slowly dug his hands into his pockets.
‘Gentlemen of the Jury, she is not entitled to a nickel. This may sound harsh. I pity her. We all pity her. But this is a court of justice. You swore to disregard all pity. I know that your oath will control you.’ Then he took up the testimony of his witnesses. ‘Not one of them saw the car move!’ he exclaimed, in a voice that threatened to split the ceiling. ‘Not one of them had the least interest in the case. And against all this uncontradicted array of witnesses comes the plaintiff, and says the car moved. You swore — each and every one of you swore — to render your verdict according to the preponderance of the evidence. Can you imagine her testimony and our testimony in the opposite sides of a pair of scales? She says the car moved. Twenty-four witnesses swear it stood still. Put that on the scales, and then put on the testimony that within half an hour after the accident she did not know how it happened.’ With his arms held horizontally, hands cupped, he pictured the scales. Then, with a rapid motion, one hand sank to the floor while the other rose high above his head. ‘The preponderance of the evidence,’ he thundered out, ‘ means the greater weight of the evidence.’ And turning to Hamilton, he shouted, ‘Do you want this jury to work like a bunch of bandits, the foreman a sort of Rob Roy? Here are the words of the judge.’ He read from the court’s charge to the jury: ‘“The plaintiff must prove her case by a fair preponderance of the evidence.” Nothing else will do. Nothing less will do: nothing but a preponderance of the evidence. The plaintiff asks twentyfive thousand dollars at your hands. She declares the car moved. If her declaration can outweigh the solemn testimony of twenty-four disinterested men who flatly contradict her, then it is useless to hear testimony. It would save time to have each party to the suit make his own statement of the case to the jury, and then send the jury out to guess at a verdict, or have it dictated by their sympathies or prejudices. Your verdict must be for the defendant.’
Hamilton rose to reply. The judge interrupted. ‘I want to close the case to-day. It is after six now. You did not use your time in opening the argument. You will now be restricted in your reply. I shall limit your closing argument to fifteen minutes.’
‘But, Your Honor, defendant’s counsel consumed an hour, and I — ’
‘You failed to review the facts in your opening argument. You cannot do so in closing. You are now limited to answering defendant’s counsel. I give you fifteen minutes for your rebuttal, Mr. Hamilton, Proceed with the argument.’
Hamilton suppressed the storm of indignation that swept through him and wheeled abruptly to the jury.
‘Fifteen minutes. Very well. It will not take me fifteen minutes to follow you in an investigation of the reason why the claim-agent did not make a list of the names and addresses of the dozen witnesses who saw this accident. I am not going to charge him with perjury. I believe he dismissed without further question every man who saw the car move. He wiped his name and recollection from his memory. He addressed himself exclusively and assiduously to the men who did not see the car move. And he has brought before you twentyfour of them. What is the value of their testimony? At best, it can only be described as negative. They did not see the car move. They failed to see it move. That is all they know. The car was there among the moving cars. No man would be particularly impressed by the ordinary and common incident of a car moving among other arriving and departing cars — all moving cars. Under such circumstances, the failure to observe the movement means nothing. But what did the other twelve men, the men whose names the claim-agent did not care about — what did they say to him about the movement of the car? This girl with her shattered limb was hurried away from the scene of the accident; all cars were stopped, and the crowd was sifted and combed for those witnesses whose impressions were favorable to the defendant. What chance did the girl have to get the names of those who saw the car move? When the diligent agent of this defendant had thoroughly and most unchivalrously exhausted his advantage, the crowd and the cars were released — and with them went the twelve who saw that car move. Was that man too kind to this poor girl, to ignore and suppress the names of those men who could have established and supported her contention? Think! within thirty minutes he and his chief were at her bedside. And to what merciful purpose?’ He seized the X-ray picture, and placing his finger on the gaping fractures shown in it, shouted to the jury, ‘To what purpose? To extract from her an expression uttered by a faculty that was completely exhausted and overcome by the unsatisfied appeals for help and relief that came crowding with every pulse-beat from these sad centres of distress.’
Hamilton paused a moment.
‘And was it impossible for the car to move?’ he continued. ‘It had moved before. That chain had slipped before. Why should it not slip again ? And when it slipped, the car was bound to move. And it moved! It moved! Twelve men, somewhere in the shuffle of the great crowed, cry out to you that it moved. And these broken bones, mute but unanswerable witnesses, confirm that cry! ’
Hamilton’s whole being was aflame with his cause.
‘Gentlemen,’ he resumed after an effort to subdue his emotions, ‘my words have been few. My time is short. You will retire to consider your verdict. And I hope that my client’s cause has found among you a better advocate than she saw fit to choose at the bar. The jury is the only body of men in this country who are endowed with the prerogatives of kings. You may take from one and give to another. And when you give, gentlemen, give without stint; give like kings!’
Hamilton sat down. The clerk of the court began to collect the papers in the case.
Miss Henderson leaned forward and whispered to Hamilton.
‘You have won the day. You ’re splendid! ’
Hamilton blushed and watched the clerk as he delivered the papers to the jury.
‘ It is getting late,’ the judge said, as he looked up at the clock. ‘When you agree upon your verdict, gentlemen, you may seal it up and deliver it to the clerk. Return here to-morrow morning at nine o’clock, and it will be read in open court. You may now retire and select your own foreman.’
The jury rose from the box. ‘This way, gentlemen,’ said the bailiff, as he opened a side door.
The claim-agent marked them all closely as they filed by. So did Hamilton; so did Brown, and so did everyone. The courtroom was silent. It was a strange case. Doubt hung in the air.
In a little while, night came on and the bailiff brought a candle.
‘You had better bring candles to burn till daylight,’ shouted a juror as the bailiff closed the door.
‘Yes, and beds and grub for six months,’ added two other voices in a single breath.
The bailiff laughed and slammed the door.
‘That’s a hung jury all right,’ he remarked to the lingering assembly in the courtroom.
‘May be so,’ answered Brown; and with a look at Hamilton, he added, ‘ but I rather expect them to agree on a small verdict — probably less than I offered you before we went to trial.’ As he gathered up his papers and put on his hat, he added, ‘It is worth five hundred dollars to try the case over again. If you want the money, you can have it yet.’ These words came over his shoulder. He stood for a moment. ‘Let’s go,’ he added; and against the fading skyline, down the hall, Hamilton watched him and heard him move over the tiled floors with his army of clerks, claimagents, and clattering witnesses, the representative of capital organized to make money. How powerful and secure they seemed to him as they disappeared and left him and his shattered client sitting there with the prospect of a ‘hung jury.’ ‘Five hundred dollars? Yes? No? All right; let’s go.’
Voices rang out loud and angry from the jury-room.
‘We must go to supper,’ suggested the old mother of the plaintiff.
‘No; not yet; let us wait a while longer,’ replied Miss Henderson. ‘I want to see the jury if they come out.’ And she chatted of her travels in the work that had yielded her a livelihood; about the manner of men that make up the anatomy and morals of a nation.
‘The jury must have gone to sleep,’ said the old mother.
‘Or they are hung,’ suggested Miss Henderson.
A loud knock on the door under the transom shot Hamilton’s heart into his throat. The door was opened, and someone asked for the bailiff.
Hamilton went to the clerk’s office. The bailiff and the clerk came, and turned on the lights in the courtroom. The jury filed in.
‘Here is the verdict,’ said one of them; and handed the clerk a long sealed envelope.
‘This will be read in open court tomorrow morning, at nine o’clock,’ replied the clerk. ‘Don’t discuss it,’ he called after the jury as they went silently and sphinxlike out of the door.
Not a man turned an eye, not a gesture revealed the character of their decision.
‘When you leave, turn out the lights,’ the clerk called out. And down went Hamilton into the depths of despair. How could there be a verdict for the plaintiff? The preponderance of the evidence was overwhelming.
After a sleepless night, Hamilton returned to the courtroom. The clock was striking nine; the judge was on the bench; the jury in the box; plaintiff and counsel on one side of the table; claimagent and counsel on the other. The clerk held the decision between his fingers.
‘Gentlemen of the Jury, have you agreed upon a verdict?’
The foreman rose. ‘Yes, Your Honor. We have agreed.’
‘The clerk will read the verdict.’
The clerk opened the envelope, rose, and read, —
“‘We find for the plaintiff and assess her damages at $25,000.”’
Perfect stillness reigned. The clerk was still considering the paper.
‘Is that your verdict, gentlemen?’ asked the judge, with contempt.
And the foreman answered, ‘That is our verdict, judge.’
Hamilton heard something whispered about congratulations.
Brown was muttering savage oaths, and without thought of books or papers, walked away. Out in the hall the claim-agent held him by the lapel of his coat and warned him; ‘Don’t you ever talk to me again about the preponderance of the evidence!'