Cotton v. Willmar & Sioux Falls Ry. Co., Nos. 14,906 - (120).

• Court: Supreme Court of Minnesota (US)
• Writing for the Court: Elliott
• Citation: 99 Minn. 366
• Decision Date: 23 November 1906
• Docket Number: Nos. 14,906 - (120).
• Parties: CLARENCE H. COTTON v. WILLMAR & SIOUX FALLS RAILWAY COMPANY.<SMALL><SUP>1</SUP></SMALL&gt

Page 366

99 Minn. 366 CLARENCE H. COTTON
v.
WILLMAR & SIOUX FALLS RAILWAY COMPANY.¹ Nos. 14,906 - (120). Supreme Court of Minnesota. November 23, 1906.

Action in the district court for Pipestone county to recover $10,125 for personal injuries. The case was tried before P. E. Brown, J., and a jury, which returned a verdict in favor of the plaintiff for $5,095. From an order denying a motion for judgment notwithstanding the verdict, or for a new trial, defendant appealed. Affirmed.

W. R. Begg, C. H. Winsor, and W. F. McNaughton, for appellant.

Janes & Janes, for respondent.

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ELLIOTT, J.

On the evening of December 21, 1905, the respondent, Cotton, engaged a livery team and driver to take him from Bell Rapids, South Dakota, to Jasper, Minnesota. The vehicle was a common, single-seated, two-horse buggy, and the driver was a young man about nineteen years of age who had had experience and was familiar with the route over which they were to pass. By the time they reached the village of Jasper it was dark and the lights were burning in the streets and houses. The weather was cool, the top of the buggy up, and the side and back curtains were drawn. Both the respondent and the driver wore heavy coats with the collars turned up but not in such manner as to interfere materially with their hearing. Wall street, upon which they entered the village, crosses the appellant's railway track at a point about seven rods east of where the street crosses a bridge or culvert. The street runs east and west and the railway track extends practically north and south. The depot building is on the west side of the track and just south of the street crossing. When the team was between fifty and seventy rods from the track, both the respondent and the driver heard the whistle of a locomotive. They continued on at a brisk pace until they crossed the bridge when the team was brought to a walk and the respondent leaned forward and looked and listened for the approaching train. At the same time the driver who sat on the respondent's right, toward the south, also looked out and listened for the train. It does not appear that the driver saw anything or made any remark, although the engine of the train must have then been behind, and concealed from view by, the station building and the train extending towards the south where it would have been visible in the daytime. The respondent, however, saw a light some six hundred or seven hundred feet up the track to the northward, which he assumed to be the headlight of a locomotive and said, "There is the headlight." Assuming apparently, that they had ample time to cross the track before the train would come that distance, both parties settled back in the seat, the driver touched the horses with the whip and drove rapidly upon the track. They were struck by the train coming from the south and the respondent sustained injuries for which he recovered a verdict for $5,000. The appeal is from an order denying

Page 368

a motion by the railway company for judgment notwithstanding the verdict or for a new trial.

The appellant contends that the evidence was not sufficient to establish negligence on the part of the railway company, but showed conclusively that the accident was caused by the negligence of the respondent in failing to use the proper care for his own safety. The complaint alleges as negligence (a) that the defendant ran the train over the street at a dangerous and unusual rate of speed; (b) failed to provide the engine with a proper headlight; (c) neglected to keep a watchman at the crossing; and (d) failed to give any signal of the approach of the train. These claims were all submitted to the jury, but upon this appeal it is conceded that, if the railway company was negligent, it was in failing to ring the bell as the train approached the crossing. The appellant contends (1) that there was no substantial evidence tending to show that the bell was not rung; (2) that the evidence showed that the respondent personally participated in the acts and controlled the driver in the management of the team, and was thus guilty of contributory negligence; (3) that the court erroneously charged the jury as to the burden of proof and as to the relation between the driver and the respondent; and (4) that the verdict was excessive.

1. The allegation being that the bell was not rung it was competent to prove the negative fact by the testimony of competent witnesses who were so situated that they might, and probably would, have heard the sound had the bell been rung. The plaintiff alleged, and was required to prove, that the bell did not ring. The fact in issue was whether at a certain time and place certain sounds were produced. Silence is as much a fact as sound and the proof of one disproves the other. If a witness heard a sound the necessary implication is that he was where he could hear the sound, but the fact that a witness did not hear a sound carries with it no such implication. Therefore when it is sought to prove the nonexistence of sound by the testimony of witnesses the conditions essential to the competency of the evidence must be supplied. The probative value to be given to the fact that a witness did not hear the sound depends upon the condition of his senses, his proximity to the place, the degree of attention, and other such circumstances which render it more or less probable that, if

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the sound had been made, the witness would have heard it. Hence the mere statement of a witness that he did not hear a bell ring is valueless as evidence, unless it further appears that he was able to hear and was in a position and under conditions where he would probably have heard the sound had it been made. The degree of attention will affect the value of the evidence, but the fact that the witness was not giving his direct attention at the time for the purpose of learning whether signals were given will not destroy the value of the evidence if he was present at the crossing, was conscious, and in the possession of his ordinary senses, and testifies positively that he heard no signal. The testimony of a witness that he did not hear a bell rung is thus of itself, as against direct and positive testimony of another that the bell did ring, no evidence that it did not ring, but, taken in connection with evidence showing that the witness could and probably would have heard it, had it been rung, and that he was listening to hear it ring, is evidence that it did not ring. The position and situation of the witnesses, the attention they were giving, and their credibility, and the weight of the evidence are questions for the jury. Moran v. Eastern Ry. Co. of Minn., 48 Minn. 46, 50 N. W. 930; Green v. Eastern Ry. Co. of Minn., 52 Minn. 79, 53 N. W. 808; Peterson v. Minneapolis St. Ry. Co., 90 Minn. 52, 95. N. W. 751; Tennessee v. Hansford, 125 Ala. 349, 28 South. 45; Dyer v. Erie, 71 N. Y. 228, 236; Johanson v. Boston, 153 Mass. 57, 26 N. E. 426; Walsh v. Boston, 171 Mass. 52, 50 N. E. 453; Marcott v. Marquette, 49 Mich. 99, 101, 13 N. W. 374; McLean v. Erie, 69 N. J. L., 57, 54 Atl. 238; Id., 70 N. J. L., 337, 57 Atl. 1132; Goodwin v. Central (N. J. Eq.) 64 Atl. 135; Northern v. State, 100 Md. 404, 60 Atl. 19; Purnell v. Raleigh, 122 N. C. 832, 29 S. E. 953; Reed v. Chicago, 74 Iowa, 188, 37 N. W. 149; Atchison v. Feehan, 149 Ill. 202, 36 N. E. 1036; Chicago v. Eganolf, 112 Ill. App. 323; Chicago v. Pulliam, 111 Ill. App. 305; McDuffie v. Lake Shore, 98 Mich. 356, 57 N. W. 248; Murray v. Missouri, 101 Mo. 236, 13 S. W. 817, 20 Am. St. 601. Such evidence, while negative in form, is affirmative in substance. Grabill v. Ren, 110 Ill. App. 587. The cases cited by appellant are not inconsistent with this rule, as a careful examination of the facts of each case will disclose that some essential element was absent. In Bohan v. Milwaukee, 61 Wis.

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391, 21 N. W. 241, and Tully v. Fitchburg, 134 Mass. 499, stress is laid upon the inadequacy of such evidence.

The substance of these decisions is that it is not enough for a witness to say merely that he does not remember having heard a bell ring. "Courts have often been asked," says Wigmore, "to exclude testimony based on what may be called negative knowledge, i. e., testimony that a fact did not occur, founded upon the witness' failure to hear or see a fact which he would supposedly have heard or seen if it had occurred. But there is no inherent...