Smith v. The Wabash, St. Louis & Pacific Ry. Co.

Citation19 Mo.App. 120
PartiesBENJAMIN F. SMITH, Respondent, v. THE WABASH, ST LOUIS & PACIFIC RAILWAY COMPANY, Appellant.
Decision Date26 October 1885
CourtCourt of Appeals of Kansas

APPEAL from Livingston Circuit Court, HON. JAMES M. DAVIS, Judge.

Reversed and remanded.

The facts are sufficiently stated in the opinion of the court.

GEORGE S. GROVER, for the appellant.

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 the judgment.

L. A. CHAPMAN and I. H. KEMP, for the respondent.

I. The court did not err in refusing instruction in the nature of demurrer to the evidence. The testimony was sufficient to maintain the cause of action. McFarland v. Bellows, 49 Mo. 311; Devore v. Plant, 42 Mo. 45.

II. If the plaintiff makes out a case upon which he can go to the jury, the court has no right after the defence is in, to assume it to be true and require the jury to find for defendant. The instruction of defendant asked this, and was properly refused. Wood's Assignee, etc., v. Atlantic Ins. Co., 50 Mo. 116.

III. The court did not err in giving instruction one for plaintiff. His cause of action was based on section 806, as amended by Session Acts of 1881, p. 79, and the instruction was couched in the language of the section. Plaintiff is not obliged to show that the injury occurred by reason of the failure to ring the bell or sound the whistle. The law makes it negligence to omit the signals. Plaintiff's evidence tended to show that neither was done, and the weight of evidence was for the jury to determine. The second instruction was not prejudicial to defendant. The jury are the sole judges of the credibility of the witness, and they have a right to believe, or not to believe all, or any part of the testimony of witnesses. Kelly v. U. S. Ex. Co., 45 Mo. 429; Bonnell v. U. S. Ex. Co., 45 Mo. 423. There was nothing more in the instruction than merely to tell them that they were the sole judges of the credibility of the witnesses and the weight to be given to their testimony.

PHILIPS P. J.

This is an action to recover damages for the killing of two heifers, the property of the plaintiff. The material allegations of the petition are, that the cattle were killed by defendant's locomotive, at a point where its railroad track crosses a public highway, and that defendant's liability springs from the failure and neglect of its servants to ring the bell or sound the whistle eighty rods next before reaching said crossing.

Plaintiff recovered judgment, from which the defendant prosecutes this appeal.

I. The first question raised by appellant on the appeal is, that the evidence was not sufficient to warrant the verdict. A careful examination of the evidence satisfies us that it would have been error in the trial court to have taken the case from the jury. There is no question made but that the cattle were killed by defendant's locomotive at such public crossing. The only controversy is as to whether or not defendant rang the bell or sounded the whistle as required by statute.

Plaintiff's evidence, by four witnesses, was that they did not hear any bell rung. They were all in such proximity as to have enabled them to hear the bell had it been ringing. One of these witnesses states positively that no bell was rung, and that he could have heard it had it been rung. They were looking at the train, and there was nothing to obstruct their sense of hearing. Such evidence does not come within the category of mere negative testimony.

As to the sounding of the whistle, three witnesses for plaintiff out of four stated that the whistle was not sounded inside of half a mile until the cars had about reached the crossing. Whether or not these witnesses were mistaken in their estimation of the distance at which the whistle was first sounded, was peculiarly a question of fact for the jury and not for the court. And although defendant's engineer and fireman stated directly that they did give the required signals, the jury were still the sole judges of the weight of evidence and the credibility of the witnesses, there being evidence of an affirmative character on either side.

II. It is, however, insisted by appellant that, conceding the plaintiff's proof tended to show that the required signals were not given,...

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