
    The Cleveland Railway Co. v. Pollack.
    (Decided March 13, 1933.)
    
      Messrs. Squire, Sanders & Dempsey, for plaintiff in error.
    
      Messrs. Borden é Gaines, for defendant in error.
   McGtll, J.

In the court below Nathan Pollack brought an action against the Cleveland Railway Company claiming expenses and loss of services from alleged injuries sustained by his wife in a fall from a street car of the defendant company. The basis of the action was negligence on the part of the company.

The wife of the plaintiff was the only witness for the plaintiff, and three witnesses testified for the defendant as to how the accident happened. In addition, there was medical testimony, and one or two stenographers testified concerning former actions brought by the wife.

In the course of his charge to the jury the court used the following language: “And to determine the weight of the evidence you do not count witnesses offered in a lawsuit on either side, nor on both sides, because in lawsuits witnesses are not counted, but their testimony and evidence is weighed, and you weigh it to determine its truthfulness, its credibility, and its probability. You can easily understand why it would not be a fair rule to count witnesses offered, because we all know that the evidence of one truthful witness would outweigh that of a hundred who were testifying falsely, so it would not be a good rule to count witnesses, and you weigh the testimony of witnesses in the scales of credibility to determine what testimony is worth and the credence and reliability you will place upon it.”

At the conclusion of the charge the record shows the . following request by counsel for defendant, and the ruling of the court:

“Mr. Powell: The Court has said that you do not count witnesses in a lawsuit. I ask you to say to the jury that if they find the witnesses to be equally credible, the number of witnesses testifying for or against a fact should be considered by them and this given such weight as they consider proper.

“The Court: I think I will let that matter stand as it is, and you may have an exception.

“Mr. Powell: Exception.”

In this situation, where one witness testified for the plaintiff as to how the accident happened against three witnesses for the defendant, this court is of the opinion that the charge was prejudicial and erroneous.

While it is true that the jury may believe or not believe any witness or witnesses, and may disregard the whole or any part of the testimony of any witness, nevertheless the effect of this instruction was to minimize the influence of a number of witnesses, and it may be well said that it encouraged the jury to disregard this element in comparison with others which they should take into consideration. The jury may have been induced by this instruction to believe that the number of witnesses was of little importance. In other words, there was an overemphasis with respect to this part of the charge relating to the number of witnesses.

That a charge minimizing the effect of the number of witnesses can be prejudicial is well established by the authorities cited: 10 Ruling Case Law, 1005, Section 193; Noone v. Olehy, 297 Ill., 160, 130 N. E., 476; Tri-City Ry. Co. v. Gould, 217 Ill., 317, 75 N. E., 493; Ogren v. Sundell, 220 Ill. App., 584; In re Dunning, 211 Ill. App., 633; Pennington v. Gillapsie, 66 W. Va., 643, 66 S. E., 1009; Dupuis v. Saginaw Valley Traction Co., 146 Mich., 151, 109 N. W., 413; Davies v. Philadelphia Rapid Transit Co., 228 Pa., 176, 77 A., 450, 139 Am. St. Rep., 1001; Hodder v. Philadelphia Rapid Transit Co., 217 Pa., 110, 66 A., 239; Sullivan, Admr., v. Nesbit, 97 Conn., 474, 117 A., 502.

In view of the number of witnesses as to the accident which were produced on each side in this case, we believe that under the authorities this instruction was erroneous and prejudicial. Accordingly the judgment is reversed and this cause remanded for further proceedings according to law.

Judgment reversed and cquse remanded.

Lieghley, P. J., and Levine, J., concur.  