Gavisk v. Pacific R.R. Co.

• Decision Date: 31 January 1872
• Citation: 49 Mo. 274
• Parties: EMMA G. GAVISK, Respondent, v. PACIFIC RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

49 Mo. 274

EMMA G. GAVISK, Respondent,

v.PACIFIC RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

January Term, 1872.

Appeal from Johnson Circuit Court.

J. N. Litton, for appellant.

I. The court erred in permitting the letter of Taylor to be read in evidence.

II. The court erred in refusing to allow the conductor to answer the question as to what would have been the effect if Gavisk had held on to the brake. There is no objection to it on the ground that he was not an expert. He had been brakeman and conductor eleven years, and, feeling shocks twenty times a day, it would be impossible to produce a man better qualified to answer the questions, and state whether the shock was sufficient to throw off a man who had braced himself as a man of Gavisk's occupation was required to do. He was an expert. (Keim v. St. Louis Mutual Ins. Co., 40 Mo. 26; 1 Greenl. Ev. 482, § 440.)H. B. Johnson, for respondent.

The letter of George R. Taylor to Emma G. Gavisk, written, as the evidence shows, with direct reference to the subject-matter of this suit, constitutes an admission of the independent facts that James Gavisk was killed by the agents and employees of the railroad company, and that Emma G. Gavisk was at the time of his death his lawful wife. The rule of law is that an admission of an independent, collateral or indifferent fact, though made during treaty for compromise, is admissible. (Phil. Ev. 431 and notes; 1 Greenl. Ev., § 192 and notes; Murray v. Coster, 4 Cord, 635-6; Marvin v. Richmond, 3 Denio, 58; Harrington v. Inhabitants of Lincoln, 4 Gray, 563; Cole v. Cole, 34 Me. 542; Corinth v. Lincoln, id. 310; Fuller v. Haupton, 5 Conn. 416; Sanborn v. Neilson, 4 N. H. 501; Mount v. Bogert, Anthon, 190; Turner v. Railton, 2 Espin. 174; Murray v. Coster, 20 Johns. 576; Hartford Bridge Co. v. Granger, 4 Conn. 1421; Marsh v. Gold, 2 Pick. 285-90; Gerrish v. Sweetser, 4 Pick. 374-7; Delogny v. Rentoul, 2 Mart. 175; Church v. Steele's Heirs, 1 A. K. Marsh. 328; Waldridge v. Kenison, 1 Espin. 143; Slack v. Buchanan, Peake's Cas. 5, 6; Tait on Ev. 293.) If evidence is admissible under any issue in the case, for any purpose, it should not be excluded. (Ruggles v. Gatton, 50 Ill. 412.)

Wm. Douglas, for respondent.

I. Even if there was error in admitting the letter of the president of defendant, that was not such an error as materially affected the merits of the action, and therefore this court cannot reverse the judgment for that reason. Without that letter the verdict must have been the same. (Gen. Stat. 1865, p. 548, § 40.)

II. But there was no error in admitting that letter. It was not an offer of compromise. It was an offer to pay a sum of money. It was made before the litigation commenced. It was not stated “expressly” or otherwise to be made without prejudice, nor was it made under any pending treaty. It does not come within either the English or American rule of excluding compromise. (1 Greenl. Ev., § 192 and notes; Ferry v. Taylor, 33 Mo. 333.)

BLISS, Judge, delivered the opinion of the court.

This suit was brought under the second section of the damage act. (Wagn. Stat. 519.) The plaintiff's husband was employed by the company about a switch, and among his duties was to get on cars and let off and set brakes. A freight train was coming, and the conductor desired to throw eleven of the cars on the switch without stopping the train. To do this the conductor detached the engine while running, and then detached the eleven cars from those following. The switch was thrown open after the engine passed, so that the eleven cars entered upon the sidetrack, and then closed in time for the others to follow the engine. Two cars were standing upon the side-track with brakes set, and as the engine passed, the engineer called out to Gavisk to jump upon them and loose the brakes. He did so, swung his light (it was dark) toward the cars approaching, calling out, “Go slow, go slow!” They struck the car upon which he was standing, and he fell between the cars and was instantly killed.

Upon the trial the plaintiff's witnesses testified that the cars came upon the switch at an unusually rapid and dangerous rate; that it was a down-grade, etc.; but the conductor testified that the running was not more rapid than necessary to make the switch, and much less than the other witnesses had testified to. The plaintiff obtained judgment.

While the conductor was upon the stand, after having testified to his experience upon railroads, he was asked to “state whether or not, if James Gavisk had, at the time of the cars striking, been holding on to the brakes and exercising ordinary care and prudence in his own protection and preservation, he would have been thrown from the cars.” This question was objected to and ruled out, and properly so. The only pretext for its admission would be upon the ground that he was an expert. An expert is supposed to have some special knowledge over and above men of ordinary education, derived from his peculiar pursuits or experience, that...