The Turn of the Balance

by Brand Whitlock

"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.