88 Mo. 534 (Mo. 1885), Kelly v. Chicago & A. R. Co.

Citation:88 Mo. 534
Opinion Judge:RAY, J.
Attorney:Wash Adams for appellant. Lathrop & Smith for respondent.
Court:Supreme Court of Missouri

Page 534

88 Mo. 534 (Mo. 1885)

KELLY, Appellant,



Supreme Court of Missouri.

October Term, 1885

Appeal from Jackson Circuit Court. --HON. F. M. BLACK, Judge.


Wash Adams for appellant.

(1) The court erred in permitting the witness, Melver, on behalf of respondent, to testify to a conversation occurring between him and appellant's driver after the injury had happened. It was not a part of the res gestæ and was incompetent. Adams v. Ry., 74 Mo. 553; McDermott v. Ry., 73 Mo. 516. (2) The court committed error in refusing to give the first and third instructions asked by appellant. Harlan v. Ry., 65 Mo. 25; Meyers v. Ry., 59 Mo. 223; Kelly v. Ry., 75 Mo. 138; Singert v. Ry., 14 Rep. 405. (3) The court erred in giving defendant's instruction which told the jury that " if plaintiff's servant in charge of the wagon and team might have seen or heard defendant's approaching train and failed to do so by his own want of care and attention, plaintiff could not recover." Plaintiff's driver was only required to exercise that degree of care which men of ordinary prudence and caution are accustomed to exercise under similar circumstances. Kennedy v. Ry., 36 Mo. 351; Ry. v. Moore, 24 N.J.L. 824; Imp. Co. v. Stead, 95 U.S. 161; Ry. v. Crawford, 24 Ohio St. 639; Ry. v. Stout, 53 Ind. 143; Ry. v. Smith, 16 Rep. 345; Wharton's Law of Negligence, sec. 48. The instruction was misleading and otherwise objectionable. (4) The instruction given by the court of its own motion was likewise erroneous. It was equivalent to saying, plaintiff could not recover unless the driver stopped the team before venturing to cross the railroad track. The duty of stopping, absolutely, should not be crystalized into a " procrustean rule." Kennedy v. Ry., 36 Mo. 363; Plummer v. Ry., 14 Rep. 368; Ry. v. Graves, 69 Tex. 339; Nehrbos v. Ry., 62 Cal. 320; Kelly v. Ry., 29 Minn. 1; Davis v. Ry., 47 N.Y. 402; Kellogg v. Ry., 79 N.Y. 76; Duffy v. Ry., 32 Wis. 274; Eilert v. Ry., 48 Wis. 608; Bunting v. Ry., 14 Nev. 358.

Lathrop & Smith for respondent.

(1) The demurrer to evidence should have been sustained, and the judgment being for the right party, this court will not reverse, even if it should be of opinion that errors were committed in the admission or exclusion of evidence, or the giving or refusing of instructions. Harlan v. Ry., 64 Mo. 480; Fletcher v. Ry., 64 Mo. 484; Whar. on Neg., sec. 384; Shear. & Redf. on Neg., secs. 488, 488 a ; Gorton v. Ry., 45 N.Y. 662; Zimmerman v. Ry., 71 Mo. 476; Henze v. Ry., 71 Mo. 636; Purl v. Ry., 72 Mo. 168; Turner v. Ry., 74 Mo. 602; Powell v. Ry., 76 Mo. 80; Lenix v. Ry., 76 Mo. 84. (2) Defendant's evidence showed that its servants used every means in their power to prevent the injury after they became aware of the danger in which plaintiff's property had been placed. Hence, plaintiff had no right to recover upon that theory, and defendant's right to have its demurrer to evidence sustained was not affected. Harlan v. Ry., 65 Mo. 22; Moody v. Ry., 68 Mo. 470; Purl v. Ry., supra. (3) The questions asked by plaintiff's counsel, and excluded by the court, were all improper. They simply called for the opinions of the witnesses. The office of witnesses is to detail facts; that of the jury to draw conclusions from those facts. (4) The conversation between plaintiff's driver and the brakeman happening as it did almost at the very time of the accident and in full view of the damaged property, was competent as part of the res gestae. Brownell v. Ry., 47 Mo. 239; Mosley v. Ins. Co., 8 Wall. 397; Ry. v. Coyle, 55 Pa.St. 402. (5) Mann, the fireman, testified that he called Mead's, the engineer's, attention to the fact that he was ringing the bell. Mead was permitted to testify that he remembered Mann's calling his attention to that fact. In this there was no error. The matter testified to by Mead was a " verbal fact," and not hearsay. (6) Plaintiff's refused instructions were all properly refused. The first left to the jury to determine whether plaintiff's driver was exercising the ordinary care of a prudent man, without having the court instruct them as to what care a prudent man was obliged to take. Zimmerman v. Ry., supra. The second instruction was an indirect attempt to have the court comment on the weight to be given to the evidence and was not justified by the conduct of any of the witnesses on the stand or their manner of testifying. The third instruction was properly refused, because it was not in the form required by the decisions of the Supreme Court, and because there was absolutely no evidence to support it. Harlan v. Ry., supra. (7) The instructions given for defendant and that given by the court of its own motion were in exact accordance with the law as the cases already cited conclusively show.


This action was brought by plaintiff to recover damages for killing a horse and injuring a mule and harness and wagon by defendant's cars at the crossing of Lydia avenue, over the railroad of defendant, in Kansas City, Missouri. The negligence charged in the petition was a failure to ring the bell within eighty rods of the crossing, and running the train at a speed in excess of six miles per hour, contrary to the city ordinance. The answer was a general denial and a plea of contributory negligence.

Evidence offered by plaintiff for the alleged purpose of showing the connection between the failure to ring the bell, and the injury to the wagon and team, and opinions of the witnesses in that behalf were excluded by the court. The court also permitted defendant's brakeman to testify over plaintiff's objection to a conversation which he had with the driver of the plaintiff after the accident had happened and the train stopped, to the effect that he was not looking, noticing or thinking about the train. At the close of the plaintiff's evidence the court refused a demurrer thereto. Under the instructions given and the evidence in the cause the jury found a verdict for...

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