The Turn of the Balance

XVIII

Although Marriott had promised Koerner early in the fall that his action against the railroad would be tried at once, he was unable to bring the event to pass. In the first place, Bradford Ford, the attorney for the railroad, had to go east in his private car, then in the winter he had to go to Florida to rest and play golf, and because of these and other postponements it was March before the case was finally assigned for trial.

"So that's your client back there, is it?" said Ford, the morning of the trial, turning from the window and the lingering winter outdoors to look at Koerner.

Koerner was sitting by the trial table, his old wife by his side. He was pale and thin from his long winter indoors; his yellow, wrinkled skin stretched over his jaw-bones, hung flabby at his throat. As Ford and Marriott looked at him, a troubled expression appeared in Koerner's face; he did not like to see Marriott so companionable with Ford; he had ugly suspicions; he felt that Marriott should treat his opponent coldly and with the enmity such a contest deserved. But just at that minute Judge Sharlow came in and court was opened.

The trial lasted three days. The benches behind the bar were empty, the bailiff slept with his gray chin on his breast, the clerk copied pleadings in the record, pausing now and then to look out at the flurries of snow. Sharlow sat on the bench, trying to write an opinion he had been working on for weeks. The jury sat in the jury-box, their eyes heavy with drowsiness, breathing grossly. Long ago life had paused in these men; they had certain fixed opinions, one of which was that any man who sued a corporation was entitled to damages; and after they had seen Koerner, with the stump of his leg sticking out from his chair, they were ready to render a verdict.

Marriott knew this, and Ford knew it, and consequently they gave attention, not to the jury, but to the stenographer bending over the tablet on which he transcribed the testimony with his fountain pen. Marriott and Ford were concerned about the record; they saw not so much this trial, as a hearing months or possibly years hence in the Appellate Court, and still another hearing months or years hence in the Supreme Court. They knew that just as the jurymen were in sympathy with Koerner, and by any possible means would give a verdict in his favor, so the judges in the higher courts would be in sympathy with the railroad company, and by any possible means give judgment in its favor; and, therefore, while Marriott's efforts were directed toward trying the case in such a way that the record should be free from error, Ford's efforts were directed toward trying the case in such a way that the record should be full of error. Ford was continually objecting to the questions Marriott asked his witnesses, and compelling Sharlow to drop his work and pass on these objections. One of Marriott's witnesses, a stalwart young mechanic, unmarried and with no responsibilities, testified positively that the frog in which Koerner had caught his foot had no block in it; he had examined it carefully at the time. Another, a man of middle age with a large family, an employe of the railroad company, had the most unreliable memory–he could remember nothing at all about the frog; he could not say whether it had been blocked or not; he had not examined it; he had not considered it any of his business. While giving his testimony, he cast fearful and appealing glances at Ford, who smiled complacently, and for a while made no objections. Another witness was Gergen, the surgeon, a young man with eye-glasses, a tiny gold chain, and a scant black beard trimmed closely to his pale skin and pointed after the French fashion. He retained his overcoat and kept on his glasses while he testified, as if he must get through with this business and return to his practice as quickly as possible. With the greatest care he couched all his testimony in scientific phrases.

"I was summoned to the hospital," he said, "at seven-sixteen on that evening and found the patient prostrated by hemorrhage and shock. I supplemented the superficial examination of the internes and found that there were contusions on the left hip, and severe bruises on the entire left side. The most severe injury, however, developed in the right foot. The tibiotarsal articulation was destroyed, the calcaneum and astragalus were crushed and inoperable, the metatarsus and phalanges, and the internal and external malleolus were also crushed, and the fibula and tibia were splintered to the knee."

"Well, what then?"

"I gave orders to have the patient prepared, and proceeded to operate. My assistant, Doctor Remack, administered the anesthetic, and I amputated at the lower third."

Doctor Gergen then explained that what he had said meant that he had found Koerner's foot, ankle and knee crushed, and that he had cut off his leg above the knee. After this he told what fee he had charged; he did this in plain terms, calling dollars dollars, and cents cents.

But Koerner himself was a sufficient witness in his own behalf. Sitting on the stand, his crutches in the hollow of his arm, the stump of his leg thrust straight out before him and twitching now and then, he told of his long service with the railroad, pictured the blinding snow-storm, described how he had slipped and caught his foot in the unblocked frog–then the switch-engine noiselessly stealing down upon him. The jurymen roused from their lethargy as he turned his white and bony face toward them; the atmosphere was suddenly charged with the sympathy these aged men felt for him. Sharlow paused in his writing, the clerk ceased from his monotonous work, and Mrs. Koerner, whose expression had not changed, wiped her eyes with the handkerchief which, fresh from the iron, she had held all day without unfolding.

When Ford began his cross-examination, Koerner twisted about with difficulty in his chair, threw back his head, and his face became hard and obdurate. He ran his stiff and calloused hand through his white hair, which seemed to bristle with leonine defiance. Ford conducted his cross-examination in soft, pleasant tones, spoke to Koerner kindly and with consideration, scrupulously addressed him as "Mr. Koerner," and had him repeat all he had said about his injury.

"As I understand it, then, Mr. Koerner," said Ford, "you were walking homeward at the end of the day through the railroad yards."

"Yes, sir, dot's right."

"You'd always gone home that way?"

"Sure; I go dot vay for twenty year, right t'rough dose yards dere."

"Yes. Was that a public highway, Mr. Koerner?"

"Vell, everybody go dot vay home all right; dot's so."

"But it wasn't a street?"

"No."

"Nor a sidewalk?"

"You know dot alreadty yourself," said Koerner, leaning forward, contracting his bushy white eyebrows and glaring at Ford. "Vot you vant to boder me mit such a damn-fool question for?"

The jurymen laughed and Ford smiled.

"I know, of course, Mr. Koerner; you will pardon me–but what I wish to know is whether or not you know. You had passed through those yards frequently?"

"Yah, undt I knows a damn-sight more about dose yards dan you, you bet."

Again the jurymen laughed in vicarious pleasure at another's profanity.

"I yield to you there, Mr. Koerner," said Ford in his suave manner. "But let us go on. You say your foot slipped?"

"Yah, dot's right."

"Slipped on the frozen snow?"

"Yah. I bedt you shlip on such a place as dot."

"No doubt," said Ford, who suddenly ceased to smile. He now leaned forward; the faces of the two protagonists seemed to be close together.

"And, as a result, your foot slid into the frog, and was wedged there so that you could not get it out?"

"Yah."

"And the engine came along just then and ran over it?"

"Yah."

Ford suddenly sat upright, turned away, seemed to have lost interest, and said:

"That's all, Mr. Koerner."

And the old man was left sitting there, suspended as it were, his neck out-thrust, his white brows gathered in a scowl, his small eyes blinking.

Sharlow looked at Marriott, then said, as if to hurry Koerner off the stand:

"That's all, Mr. Koerner. Call your next."

When all the testimony for the plaintiff had been presented Ford moved to arrest the case from the jury; that is, he wished Sharlow to give judgment in favor of the railroad company without proceeding further. In making this motion, Ford stood beside his table, one hand resting on a pile of law-books he had had borne into the court-room that afternoon by a young attorney just admitted to the bar, who acted partly as clerk and partly as porter for Ford, carrying his law-books for him, finding his place in them, and, in general, relieving Ford from all that manual effort which is thought incompatible with professional dignity. As he spoke, Ford held in his hand the gold eye-glasses which seemed to betray him into an age which he did not look and did not like to admit. Marriott had expected this motion and listened attentively to what Ford said. The Koerners, who did not at all understand, waited patiently. Meanwhile, Sharlow excused the jury, sank deeper in his chair and laid his forefinger learnedly along his cheek.

Ford's motion was based on the contention that the failure to block the frog–he spoke of this failure, perfectly patent to every one, as an alleged failure, and was careful to say that the defendant did not admit that the frog had not been blocked–that the alleged failure was not the proximate cause of Koerner's injury, but that the real cause was the ice about the frog on which Koerner, according to his own admission, had slipped. The unblocked frog, he said–admitting merely for the sake of argument that the frog was unblocked–was the remote cause, the ice was the proximate cause; the question then was, which of these had caused Koerner's injury? It was necessary that the injury be the effect of a cause which in law-books was referred to as a proximate cause; if it was not referred to as a proximate cause, but as a remote cause, then Koerner could not recover his damages. After elaborating this view and many times repeating the word "proximate," which seemed to take on a more formidable and insuperable sound each time he uttered it, Ford proceeded to elucidate his thought further, and in doing this, he used a term even more impressive than the word proximate; he used the phrase, "act of God." The ice, he said, was an "act of God," and as the railroad company was responsible, under the law, for its own acts only, it followed that, as "an act of God" was not an act of the railroad company, but an act of another, that is, of God, the railroad company could not be held accountable for the ice.

Having, as he said, indicated the outline of his argument, Ford said that he would pass to a second proposition; namely, that the motion must be granted for another reason. In stating this reason, Ford used the phrases, "trespass" and "contributory negligence," and these phrases had a sound even more ominous than the phrases "proximate" and "act of God." Ford declared that the railroad yards were the property of the railroad company, and therefore not a thoroughfare, and that Koerner, in walking through them, was a trespasser. The fact that Koerner was in the employ of the railroad, he said, did not give him the right to enter in and upon the yards–he had the lawyer's reckless extravagance in the use of prepositions, and whenever it was possible used the word "said" in place of "the"–for the reason that his employment did not necessarily lead him to said yard and, more than all, when Koerner completed his labors for the day, his right to remain in and about said premises instantly ceased. Therefore, he contended, Koerner was a trespasser, and a trespasser must suffer all the consequences of his trespass. Then Ford began to use the phrase "contributory negligence." He said that Koerner had been negligent in continuing in and upon said premises, and besides, had not used due care in avoiding the ice and snow on and about said frog; that he had the same means of knowing that the ice was there that the railroad company had, and hence had assumed whatever risk there was in passing on and over said ice, and that then and thereby he had been guilty of contributory negligence; that is, had contributed, by his own negligence, to his own injury. In fact, it seemed from Ford's argument that Koerner had really invited his injury and purposely had the switch-engine cut off his leg.

"These, in brief, if the Court please," said Ford, who had spoken for an hour, "are the propositions I wish to place before your Honor." Ford paused, drew from his pocket a handkerchief, pressed it to his lips, passed it lightly over his forehead, and laid it on the table. Then he selected a law-book from the pile and opened it at the page his clerk had marked with a slip of paper. Sharlow, knowing what he had to expect, stirred uneasily and glanced at the clock.

During Ford's argument Sharlow had been thinking the matter over. He knew, of course, that the same combination of circumstances is never repeated, that there could be no other case in the world just like this, but that there were hundreds which resembled it, and that Ford and Marriott would ransack the law libraries to find these cases, explain them to him, differentiate them, and show how they resembled or did not resemble the case at bar. And, further, he knew that before he could decide the question Ford had raised he would have to stop and think what the common law of England had been on the subject, then whether that law had been changed by statute, then whether the statute had been changed, and, if it was still on the statute books, whether it could be said to be contrary to the Constitution of the United States or of the State. Then he would have to see what the courts had said about the subject, and, if more than one court had spoken, whether their opinions were in accord or at variance with each other. Besides this he would have to find out what the courts of other states had said on similar subjects and whether they had reversed themselves; that is, said at one time something contrary to what they had said at another. If he could not reconcile these decisions he would have to render a decision himself, which he did not like to do, for there was always the danger that some case among the thousands reported had been overlooked by him, or by Ford or Marriott, and that the courts which would review his decision, in the years that would be devoted to the search, might discover that other case and declare that he had not decided the question properly. And even if the courts had decided this question, it might be discovered that the question was not, after all, the exact question involved in this case, or was not the exact question the courts had meant to decide. It would not do for Sharlow to decide this case according to the simple rule of right and wrong, which he could have found by looking into his own heart; that would not be lawful; he must decide it according to what had been said by other judges, most of whom were dead. Though if Sharlow did decide, his decision would become law for other judges to be guided by, until some judge in the future gave a different opinion.

Considering all this, Sharlow determined to postpone his decision as long as possible, and told Ford that he would not then listen to his authorities, but would hear what Marriott had to say.

And then Marriott spoke at length, opposing all that Ford had said, saying that the unblocked frog must be the proximate cause, for if it had been blocked, Koerner could not have caught his foot in it and could have got out of the way of the switch-engine. Furthermore, he declared that the yards had been used by the employes as a thoroughfare so long that a custom had been established; that the unblocked frog, according to the statute, was prima facie negligence on the part of the defendant. And he said that if Ford was to submit authorities, he would like an opportunity to submit other authorities equally authoritative. At this Sharlow bowed, said he would adjourn court until two o'clock in order to consider the question, recalled the jury and cautioned them not to talk about the case. This caution was entirely worthless, because they talked of nothing else, either among themselves or with others; being idle men, they had nothing else to talk about.

Koerner had listened with amazement to Ford and Marriott, wondering how long they could talk about such incomprehensible subjects. He had tried to follow Ford's remarks and then had tried to follow Marriott's, but he derived nothing from it all except further suspicions of Marriott, who seemed to talk exactly as Ford talked and to use the same words and phrases. He felt, too, that Marriott should have spoken in louder tones and more vehemently, and shown more antipathy to Ford. And when they went out of the court-house, he asked Marriott what it all meant. But Marriott, who could not himself tell as yet what it meant, assured Koerner that an important legal question had arisen and that they must wait until it had been fully argued, considered and decided by the court. Koerner swung away on his crutches, saying to himself that it was all very strange; the switch-engine had cut off his leg, against his will, no one could gainsay that, and the only important question Koerner could see was how much the law would make the railroad company pay him for cutting off his leg. It seemed silly to him that so much time should be wasted over such matters. But then, as Marriott had said, it was impossible for Koerner to understand legal questions.

By the time he opened court in the afternoon, Sharlow had decided on a course of action, one that would give him time to think over the question further. He announced that he would overrule the motion, but that counsel for defense might raise the question again at the close of the evidence, and, should a verdict result unfavorably to him, on the motion for a new trial.

Ford took exceptions, and began his defense, introducing several employes of the railroad to give testimony about the ice at the frog. When his evidence was in, Ford moved again to take the case from the jury, but Sharlow, having thought the matter over and found it necessary for his peace of mind to reach some conclusion, overruled the motion.

Then came the arguments, extending themselves into the following day; then Sharlow must speak; he must charge the jury. The purpose of the charge was to lay the law of the case before the jury, and for an hour he went on, talking of "proximate cause," of "contributory negligence," of "measure of damages," and at last, the jury having been confused sufficiently to meet all the requirements of the law, he told them they might retire.

It was now noon, and the court was deserted by all but Koerner and his wife, who sat there, side by side, and waited. It was too far for them to go home, and they had no money with which to lunch down town. The bright sun streamed through the windows with the first promise of returning warmth. Now and then from the jury room the Koerners could hear voices raised in argument; then the noise would die, and for a long time it would be very still. Occasionally they would hear other sounds, the scraping of a chair on the floor, once a noise as of some one pounding a table; voices were raised again, then it grew still. And Koerner and his wife waited.

At half-past one the bailiff returned.

"Any sign?" he asked Koerner.

"Dey was some fightin'."

"They'll take their time," said the bailiff.

"Vot you t'ink?" Koerner ventured to ask.

"Oh, you'll win," said the bailiff. But Koerner was not so sure about that.

At two o'clock Sharlow returned and court began again. Another jury was called, another case opened, Koerner gave place to another man who was to exchange his present troubles for the more annoying ones the law would give him; to experience Koerner's perplexity, doubt, confusion, and hope changing constantly to fear. Other lawyers began other wrangles over other questions of law.

At three o'clock there was a loud pounding on the door of the jury room. Every one in the court-room turned with sudden expectation. The bailiff drew out his keys, unlocked the door, spoke to the men inside, and then went to telephone to Marriott and Ford. After a while Marriott appeared, but Ford had not arrived. Marriott went out himself and telephoned; Ford had not returned from luncheon. He telephoned to Ford's home, then to his club. Finally, at four o'clock, Ford came.

After the verdict Marriott went to the Koerners and whispered:

"We can go now."

The old man got up, his wife helped him into his overcoat, and he swung out of the court-room on his crutches. He had tried to understand what the clerk had read, but could not. He thought he had lost his case.

"Well, I congratulate you, Mr. Koerner," said Marriott when they were in the corridor.

"How's dot?" asked the old man harshly.

"Why, you won."

"Me?"

"Yes; didn't you know?"

"I vin?"

"Certainly, you won. You get eight thousand dollars."

The old man stopped and looked at Marriott.

"Eight t'ousandt?"

"Yes, eight thousand."

"I get eight t'ousandt, huh?"

"Yes."

A smile transfigured the heavy, bony face.

"Py Gott!" he said. "Dot's goodt, hain't it?"

XIX

Late in April they argued the motion for a new trial, and on the last day of the term Sharlow announced his decision, overruling the motion, and entered judgment in Koerner's favor. Though Marriott knew that Ford would carry the case up on error, he had, nevertheless, won a victory, and he felt so confident and happy that he decided to go to Koerner and tell him the good news. The sky had lost the pale shimmer of the early spring and taken on a deeper tone. The sun was warm, and in the narrow plots between the wooden sidewalks and the curb, the grass was green. The trees wore a gauze of yellowish green, the first glow of living color they soon must show. A robin sprang swiftly across a lawn, stopping to swell his ruddy breast. Marriott made a short cut across a commons, beyond which the spire of a Polish Catholic church rose into the sky. The bare spots of the commons, warmed by the sun, exhaled the strong odor of the earth, recalling memories of other springs. Some shaggy boys, truants, doubtless, too wise to go to school on such a day, were playing a game of base-ball, writhing and contorting their little bodies, raging and screaming and swearing at one another in innocent imitation of the profanity of their fathers and elder brothers.

Koerner, supported by one crutch, was leaning over his front gate. He was recklessly bareheaded; his white, disordered hair maintained its aspect of fierceness, and, as Marriott drew near, he turned on him his great, bony face, without a change of expression.

"Well, Mr. Koerner, this is a fine day, isn't it?" said Marriott as he took the old man's hand. "I guess the spring's here at last."

Koerner took his constant pipe from his lips, raised his eyes and made an observation of the heavens.

"Vell, dot veat'er's all right." As he returned the amber stem to his yellow teeth, Marriott saw that the blackened bowl of the pipe was empty. The old man let Marriott in at his gate, then swinging about, went to the stoop, lowered himself from his crutches and sat down, with a grunt at the effort.

"Aren't you afraid for your rheumatism?" asked Marriott, sitting down beside him.

"Vot's up now again, huh?" demanded Koerner, ignoring this solicitude for his health.

"Nothing but good news this time," Marriott was glad to say.

"Goodt news, huh?"