Gulf, C. & S.F. Ry. Co. v. Ellis
| Decision Date | 27 January 1893 |
| Docket Number | 147. |
| Citation | 54 F. 481 |
| Parties | GULF, C. & S.F. RY. CO. v. ELLIS. |
| Court | U.S. Court of Appeals — Eighth Circuit |
E. D Kenna, J. W. Terry, and C. L .Jackson, for plaintiff in error.
Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District judge.
The court below refused to give a preemptory instruction to the jury to find a verdict for the defendant as to the filly killed July 28, 1889, and this refusal is assigned for error. The evidence shows that the defendant's engine struck and killed the filly; that the track at the place where this was done was straight and level for half a mile or more in either direction, and that one standing on the track at that point could see an animal on or near it for that distance in either direction, and that the footprints of the filly showed that she had run on the track, ahead of the engine, 200 yards or more, before she was overtaken and killed. It was the duty of the engineer to keep a lookout for stock upon the track, and when discovered, to use ordinary care to avoid injuring it. We are asked by the learned counsel for the plaintiff in error to declare as a matter of law, under the evidence in this case, that the defendant's engineer was not negligent in the discharge of the duty imposed upon him by this rule; and an extended brief is filed in support of this contention, which we have carefully considered. It is said there is no evidence to show that the train could have been stopped in a distance of 200 yards; that the distance within which a train can be stopped depends on the speed that it is going, the grade and condition of the track, the number of cars, and other conditions, and that the evidence fails to disclose any information on these matters; and with some emphasis the question is asked: 'Will the members of this court undertake to say that a train of unknown speed, on a track which might or might not have been slippery, pulling a train that may have had five or fifty cars, could have been stopped in six hundred feet? ' This court will not undertake to declare as a matter of law that a train, under the unknown conditions named, can be stopped in 600 feet, nor will it declare as a matter of law, that it cannot be stopped in that distance. The declaration if made either way, would be a mere expression of opinion on a matter of fact, and not a declaration of law, and would settle no principle of law and have no binding force on this or any other court in any other case. The question is not one of law, but one of fact for the jury, who doubtless brought to its determination common sense, and the knowledge common to all, that the speed of a railroad train can ordinarily be slackened sufficiently in a distance of 200 yards to avoid running down a horse going at full speed on the track ahead of it. If the special circumstances connected with the operation of this train at this time and place were such as to make it an exception to the general rule and render it unsafe and impracticable to slacken its speed, or stop it, the burden was on the defendant to show that fact. These were matters peculiarly within the knowledge of the defendant. Its engineer must have had actual knowledge on all these subjects. His deposition was taken by the defendant, but he was not asked to testify, and did not testify, on these subjects, and was not examined at all as to the killing of this filly.
There was satisfactory proof of circumstances tending strongly to show negligence, and from which we think the jury could rightfully infer negligence. The circumstantial evidence in the case is rendered more cogent, if not conclusive, by a well-settled rule of evidence. The facts in the matter in dispute rested peculiarly within the knowledge of the defendant, and it had in its power to show, by its engineer what they were, and declined to do so. Now, it is a well-settled rule of evidence that when the circumstances in proof tend to fix a liability on a party who has it in his power to offer evidence of all the facts as they existed, and rebut the inferences which the circumstances in proof tend to establish, and he fails to offer such proof, the natural conclusion is that the proof, if produced, instead of rebutting, would support, the inferences against him, and the jury is justified in acting upon that conclusion. 'It is certainly a maxim,' said Lord Mansfield, 'that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted. ' Blatch v. Archer, Cowp. 63, 65. It is said by Mr. Starkie, in his work on Evidence, vol. 1, p. 54:
'The conduct of the party in omitting to produce that evidence in elucidation of the subject-matter in dispute which is within his power, and which rests peculiarly within his own knowledge, frequently affords occasion for presumptions against him, since it raises strong suspicion that such...
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...would be against him. The silence of one who should speak may well create an inference adverse to him. In Gulf, C. & S. F. Ry. Co. v. Ellis, 54 F. 481, 483, 4 C. C. A. 454, 456, this court said: "The facts in the matter in dispute rested peculiarly within the knowledge of the defendant, and......
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