19 Mo.App. 120 (Mo.App. 1885), Smith v. The Wabash, St. Louis & Pacific Ry. Co.
|Citation:||19 Mo.App. 120|
|Opinion Judge:||PHILIPS, P. J.|
|Party Name:||BENJAMIN F. SMITH, Respondent, v. THE WABASH, ST LOUIS & PACIFIC RAILWAY COMPANY, Appellant.|
|Attorney:||GEORGE S. GROVER, for the appellant. L. A. CHAPMAN and I. H. KEMP, for the respondent.|
|Case Date:||October 26, 1885|
|Court:||Court of Appeals of Missouri|
APPEAL from Livingston Circuit Court, HON. JAMES M. DAVIS, Judge.
Reversed and remanded.
The facts are sufficiently stated in the opinion of the court.
I. Upon all the evidence the jury should have been instructed to find for the defendant. The fact of ringing the bell within eighty rods of the crossing, was testified to by defendant's witnesses, and was not shaken by the negative testimony of plaintiff's witnesses. In such a case no conflict of evidence is presented and the fact that the bell was rung as required by law, is to be regarded as established. Henze v. St. L., K. C. & N. Ry. Co., 71 Mo. 639. And as the law does not require both signals to be given, and as the proof of giving either signal shows a sufficient compliance with the statute, and as the fact of the ringing of the bell was established, the plaintiff was not entitled to recover upon that allegation of the petition. VanNote v. H. & St. Jo. R. R., 70 Mo. 641; Turner v. Same, 78 Mo. 580. Nor was plaintiff entitled to recover upon the proof as to the rate of speed. As a matter of law, such rate of speed was not negligent. Maher v. A. & P. R. R., 64 Mo. 267; Young v. H. & St. Jo. R. R., 79 Mo. 340. Even if the proof had been, as it was not, that the signals were not given, and, also, that the speed of the train was excessive, yet such facts did not entitle plaintiff to recover, without some evidence that such negligence caused the injury. As this was not attempted, the jury should have been instructed to find for the defendant. Holman v. R. R., 62 Mo. 563; Wallace v. R. R., 74 Mo. 596; Turner v. R. R., 78 Mo. 580.
II. The second instruction was erroneous and prejudicial to defendant. It is only when a witness has wilfully testified to an untruth that his motive may be impugned and his testimony discredited. Fath v. Hake, St. L. Ct. App., not reported; State v. Elkins, 63 Mo. 166; Evans v. George, 80 Ill. 53; Wharton on Evid. (2 Ed.) sect. 412. It was, also, prejudicial as it was evidently aimed at the witnesses for defendant for the purpose of inducing the jury to discredit them, and thus enable plaintiff to make out a case. This, of itself, should be sufficent to reverse...
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