Harrison v. Southern Railway Company

• Decision Date: 18 May 1908
• Court: Mississippi Supreme Court
• Parties: FORD C. HARRISON v. SOUTHERN RAILWAY COMPANY

46 So. 408

93 Miss. 40

FORD C. HARRISON v. SOUTHERN RAILWAY COMPANY

Supreme Court of Mississippi

May 18, 1908

March 1908

FROM the circuit court of Lauderdale county, HON. ROBERT F COCHRAN, Judge.

Harrison appellant, was plaintiff in the court below; the railway company, appellee, was defendant there. From a judgment in defendant's favor, predicated of a peremptory instruction, the plaintiff appealed to the supreme court.

Appellant's child, sixteen months old, was run over and killed by a passenger train of the appellee. Appellant and his wife and child had, for several weeks prior to the accident, been living in appellee's section house by agreement with the section foreman. The section house was situated on the side of a cut near several other like houses; the ground on which the house was built was fifteen feet higher than the railroad track and had a fence around it. A path led from the premises down into the cut. Appellant was not at home when his child was killed, and his wife, who was at home, being busy with her household duties, had left the child on the front porch having told a negro workman in the yard to keep an eye on it. The accident occurred about eight o'clock in the morning the day being rather cloudy. The child, unobserved, wandered onto the track, where it was run over and killed by the train. Appellant claimed that the engineer could and should have seen the child in time to stop the engine, and that between the place the engineer sounded the alarm by blowing his whistle and the place the child was struck the engineer could by the application of emergency brakes have stopped the engine before reaching the child. In support of this contention he offered evidence of experiments made at that place, at the same time of day and under similar climatic conditions, attempting to show by witnesses the distance at which a child, the same size as the one killed, could be seen on the track.

Appellant offered to prove by one Price, who saw the approaching engine, heard the alarm given by the engineer, noted the place of the approaching train when the whistle was sounded giving the alarm, rushed to the scene of the accident, and saw the child lying where it had been struck, that the distance between the two places was two hundred and thirty five yards; and plaintiff offered the testimony of experienced railroad engineers to show that a train of cars, such as the one which killed the child, on a similar track, could be brought to a stop in a distance of one hundred yards. All this testimony was on defendant's objection excluded by the court, and a peremptory instruction given for the defendant.

The contention of appellee is that the plaintiff, and also the mother of the child and the negro under whose care the child had been placed, were guilty of contributory negligence in allowing the child to wander on the track, and that the defendant railroad company was not guilty of negligence, because the child was a trespasser and the defendant was under no obligation, except to refrain from wilfully and wantonly injuring the child and exercising reasonable care to prevent injury, and because its presence on the track was not discovered in time to prevent the accident.

Reversed and remanded.

Witherspoon & Witherspoon and R. A. Collins, for appellant.

In determining the admissibility of testimony, the first question is whether or not it is relevant to any issue of fact before the court. The issue of fact here was whether the engineer made a reasonable effort to stop his engine after seeing the child. On this issue of fact it is clearly relevant to show how far the engineer must have seen the child and how far he could have seen it, and it seems that the proof, of experiments determining how far other people could see it was at least of some probative value to show how far the engineer could have seen it. This evidence being relevant, it is incumbent on the party claiming that it is inadmissible to show some rule of evidence under which it is excluded, for all relevant evidence is admissible unless there is a reason for excluding, embodied in some positive rule. Rules of evidence are rules of exclusion. The only case in which it would seem possible to us that these experiments were irrelevant would be when the circumstances and surroundings were so different from those under which the accident happened that their result would be misleading but the experiments which the appellant sought to have his witnesses testify about were made under exactly the same conditions as those under which the accident occurred. The only difference in the surroundings and conditions of the experimenters and those of the engineer was that the engineer was lifted a good many feet above the track and for that reason could see the child at a greater distance. But, however that may be, the witnesses of appellant in testifying as to these experiments were subject to cross-examination and the attorneys for the railroad had ample opportunity to diminish the value of their testimony by drawing out any differences between their situation and that of the engineer, which might enable them to see the child further than the engineer could see it on the day of the accident. Any difference could also have been commented upon by counsel for the railroad company in argument to the jury. In these ways any danger of misleading the jury would be avoided.

Greenleaf on Evidence, (16 ed.), by Wigmore, pronounces on this point as follows: (sec. 14 v. p. 89.)

"On the same general principle--i. e. the use of mental impressions as indicating the nature of a material object--the impressions of other persons (usually obtained by experiment) as to whether a thing could be seen, heard, or identified under given circumstances of time, place, and other surroundings, has usually been received. Whether a distance is capable of being traversed in a given time, or a locomotive capable of being stopped by the engineer, or any other thing capable of being done by a human being, may properly be evidenced by the experience of the same or other persons under similar condition." (Citing cases.)

In reply to a possible objection that the experiments were ex parte (same book, p. 275).

"It has of late been objected in several instances that an examination of a place or person, or an experiment tried, or a diagram made, by a witness ex parte, i.e. without notice to the opponent, is improper, and renders testimony based upon it inadmissible. This of course is a misunderstanding of the hearsay rule and the principle of confrontation. The witness afterwards testifies in court, subject to cross-examination, and testimony thus given cannot be thought of as ex parte. The objection has always been repudiated." Burg v. Chicago, R. I. & P. Ry. Co., 57 N.W. , 683; Nosler v. Chicago B. Q. Ry. Co. (Iowa), 34 N.W. , 850; Brooke v. Chicago; etc., R. Co., 47 N.W. , 75.

The question of whether the engineer was negligent or not of course depends upon whether he saw the baby or could by the use of reasonable care have seen the baby in time to avoid running over it. Bearing on this question, the record discloses the following facts: It is uncontroverted that the track over which the engine came was straight for a distance of two miles. All the witnesses testified to this fact and there was no obstruction whatever to prevent the engineer discovering the baby as far as eyes could see. The spaces between the cross-ties were filled with slag and there was nothing behind which the baby could hide. A glance at the photograph sent up with the record is convincing on this point

The accident happened in the day time at eight o'clock in the morning and although early in the morning it had been cloudy and according to one of the witnesses it had misted rain a little, the testimony is that at the time of the accident it had cleared off and the sum was shining brightly. Appellant testified that he could see the child on the track on this day a quarter of a mile from the direction that the train came. This testimony was admitted without objection.

Price also testified that he was a quarter of a mile from where the child was killed when the accident happened and from where he was he could have seen the child at the depot where it was killed.

Two engineers, one of twenty-eight years experience, the other of twenty years, say that by the use of the emergency brakes the engineer could have stopped the train in one hundred yards. They say that they...