City of Victor v. Smilanich

Mr. Justice Gabbert

delivered the opinion of the court:

The contention of counsel for the city is (1) that Willie should not have been permitted to testify; and (2) that the evidence is insufficient to sustain the verdict, because it fails to -establish negligence of the city.

*483 Our statute, section 7273, R. S. 1908, provides that “children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly,” shall not be witnesses. This provision does not apply to all children under ten years of age, but onfy to those under that age who' “appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.” This language clearly implies that the competency of a child as a witness under the prescribed age, is a question addressed to the sound discretion of the trial court to determine. When, therefore, the trial court has determined this question, it will not be disturbed on review, unless it appears from the examination of the child on its voir dire, or its testimony, that the trial court clearly abused its discretion. — State v. Blythe, 58 Pac. (Utah) 1108; People v. Swist, 69 Pac. (Cal.) 223; Wheeler v. United States, 16 Sup. Ct. Rep. 93; State v. Juneau, 59 N. W. (Wis.) 580; People v. Walker, 71 N. W. (Mich.) 641.

Prom the record before us., it appears the boy understood that as a witness he was required to tell the truth; that he could be punished if he did not, and that he had a fair understanding of the obligation of an oath, and the facts, which he detailed; and hence, it does not appear the trial judge abused his discretion in permitting him to testify. The credibility of the boy as a witness and the weight to be given his testimony, considering his age, was for the jury to consider and determine.

The vital question of fact in the case was, whether the caps which the boys secured were left by the employes of the city at the door of the shed. Counsel for defendant insist this must be resolved in favor of the city, for. the reason, that the testimony of its employes, to the effect that they did not leave them there or at any place where the boys could have access to them, was not contradicted or impeached. , The sufficiency of the evidence to justify the submission of the case to the *484 jury was determined by the trial court contrary to the contention here, By overruling a motion of defendant for a directed verdict at the conclusion of the plaintiff’s testimony, and by also overruling a similar motion when all the testimony was in. The jury resolved the fact in dispute in favor of the plaintiff, and the trial judge refused to disturb this finding by-overruling a motion for a new trial, and a motion for a judgment non obstante ver dicto.

There is testimony that the caps were found by the boys at the door of the shed in which the city’s employes stored explosives used in excavating the ditch, and the jury must have found this to be the fact. Tire employes say they did not leave them there; and although this testimony is not directly controverted, the jury must have determined they did, and the trial judge has ruled that the evidence was sufficient to not only submit this question to the jury, but also sufficient to justify this finding of fact by them. It does not always follow that because positive testimony of a witness is not directly controverted that a jury must treat such evidence as true. A witness niay be contradicted by circumstances, as well as by statements of others contrary to his own. In such cases neither courts nor juries are bound to refrain from exercising their own judgment as to the probative value of his testimony. — 30 Ency. 1068. There is testimony that the caps were found by the boys in a box corresponding with the one which the employes admitted they purchased containing caps. The number of caps in this box, bearing in mind that thirty-five were found in Willie’s pocket which he .says he took out of the box, with the number 'found on the ground, immediately after the explosion, tallies approximately with the number not used. There is testimony that the employes were using explosives the morning of the injury, although they deny it. The caps were found .where they might have been placed, and inadvertently left, in unlocking and locking the door of the shed. There is evidence that all the explosives used by others in. excavating the ditch had been removed about one month previous to Peter’s injury. *485 These are circumstances tending tó contradict the positive testimony of the city’s employes, for the reason that from the testimony, as a whole, they tend to prove that the caps the boys found belonged to the city, and that it was not altogether improbable they had been left (no doubt, inadvertently,) at the door of the shed by the employes of the city, as no one else would have been likely to leave ‘them at that place. When circumstantial evidence is of a nature from which it can be reasonably inferred that it contradicts the direct arid positive testimony of witnesses, it is the province of the jury to determine the weight to which such evidence is entitled. — United States v. Pacific Express Co., 15 Fed. 867. In many instances evidence to establish a fact is circumstantial. If it is of sufficient strength and force, considering the surrounding circumstances and conditions, to justify a reasonable and well-grounded inference, by reasonable men, that the fact in dispute is thus established, the question should be left to the jury to determine. — C. & F. Lumber Co. v. D. & R. G. R. R. Co., 17 Colo. App. 275; Colo. Midland Ry. Co. v. Snider, 38 Colo. 351.

Tested by these rules, we think the trial court was right-in submitting the question of the alleged negligence of the employes of the city to the jury to determine; and that their finding on the subject is justified by sufficient substantial evidence to sustain it.

The judgment of the district court is affirmed.

Judgment affirmed.

Chief Justice Musser and Mr. Justice Hill concur.