71 Mo. 636 (Mo. 1880), Henze v. St. Louis, K.C. & N. Ry. Co.

Citation:71 Mo. 636
Opinion Judge:HENRY, J.
Party Name:HENZE v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.
Attorney:Wells H. Blodgett, Jno. F. Williams and Charles A. Winslow for appellant. J. L. Smith, L. C. Krauthoff, Rudolph Hirzel, H. W. Johnson and Forrist, for respondent.
Court:Supreme Court of Missouri
 
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Page 636

71 Mo. 636 (Mo. 1880)

HENZE

v.

THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1880

Appeal from Audrain Circuit Court. --HON. G. PORTER, Judge.

REVERSED.

Wells H. Blodgett, Jno. F. Williams and Charles A. Winslow for appellant.

J. L. Smith, L. C. Krauthoff, Rudolph Hirzel, H. W. Johnson and Forrist, for respondent.

HENRY, J.

Returning from Jonesborough in a two horse wagon, Fred Henze and his son, about six years of age, in passing over defendant's railroad at a public crossing in Montgomery county, known as Holland's crossing, were struck and killed by the engine of a passenger train running west. Plaintiff, the widow of Henze and mother of the lad, sued defendant for $10,000, alleging that the death of her husband and son was occasioned by the negligence of the defendant's employees in running and managing the train. She obtained a judgment for $10,000, from which the defendant has appealed.

There was a conflict in the evidence for plaintiff, as to whether the deceased could have seen an approaching train after he turned south from the Boonslick road, until he got upon the track, a distance of 100 yards. Some of plaintiff's witnesses testified that, if he had looked, he could, and others that he could not have seen a train approaching from the east; but that he could have heard the train if he had stopped and listened was proven by John Thompson, Albert Kilgore, Anthony Horton, Rhoda Brooks, James Ferguson, Thomas Kimbal and Mrs. Drew, witnesses for plaintiff. Katie Wood, Douglas Kilgore, Thomas Patton and G. W. Lehne testified that they did not hear it. Thomas Patton was laying a floor in a corn crib, on the side of the road running south to the railroad track, working with an axe, and the noise he made at his work would probably have prevented him from hearing the noise made by the train. G. W. Lehne was 150 yards north of the crossing, traveling in a wagon, and the noise made by his wagon may have prevented him from hearing that made by the train. Douglas Kilgore was 130 yards south of the crossing, and Katie Wood was crossing the railroad track at a point west of the Holland crossing, and did not hear the train approaching until it came very near her.

The positive testimony of the witnesses who heard the train is not contradicted by that of those who did not hear it, and establishes the fact that Henze could have heard the train if he had stopped and listened. Whether one does or does not hear so that he can testify to a given sound depends upon the degree of attention he may give to its source. The familiar example of several persons being in a room where there is a clock, one or more of whom state that they heard it strike, while the others testify that they did not hear it, is an apt illustration of the difference between mere negative and contradictory evidence. If the witnesses are equally credible, although the number of those who say they did not hear it exceeds that of those who say they did, yet the testimony of the latter is to be regarded as establishing the fact, because it is consistent with, and not contradictory of, the negative evidence. If the others had testified also that, for some particular reason, their attention was called to the clock when it should have struck, and that they did not hear it, a conflict of evidence would be presented. The witnesses here simply stated that they did not hear the train, and their testimony does...

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