Haun v. Rio Grande W. Ry. Co.

• Court: Supreme Court of Utah
• Writing for the Court: BASKIN, J.
• Citation: 22 Utah 346,62 P. 908
• Parties: MARGARET HAUN, AS ADMINISTRATRIX OF THE ESTATE OF CHARLES HAUN, DECEASED, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, A CORPORATION
• Decision Date: 28 September 1900

62 P. 908

22 Utah 346

MARGARET HAUN, AS ADMINISTRATRIX OF THE ESTATE OF CHARLES HAUN, DECEASED,
v.
THE RIO GRANDE WESTERN RAILWAY COMPANY, A CORPORATION

Supreme Court of Utah

September 28, 1900

Appeal from the Third District Court Salt Lake County. Hon. A. N. Cherry, Judge.

Action by plaintiff to recover damages for the killing of her husband alleged to have been caused by the negligence of defendant company. From a judgment for defendant plaintiff appealed.

Reversed and remanded.

J. J. Whitaker, Esq., Geo. Halverson, Esq., and A. E. Pratt, Esq., for appellant.

The court erred in sustaining defendant's objection to the following question asked plaintiff's witness, John Graham, on direct examination.

"Q. Were you in a position, Mr. Graham, that had the train whistled you could have heard it?

"It is a familiar practice to allow a witness, after he has described the situation, to state that he would have heard the whistle if it had sounded." Chicago & A. Ry. Co. v. Dillon, 123 Ill. 570; 15 N.E. 181; Burnhan v. Shenwood, 56 Conn. 229; Ill. Cen. Ry. Co. v. Slater, (Sup.) 28 N.E. 131; Ry. Co. v. Siltman, 88 Ill. 531; 65 N.W. R. 527; See last edition Greenleaf on Ev. Sec. 440 and cases cited; Seeley v. N.Y. Cen. & H. R. R. Co., 40 N.Y.S. 866.

Instruction No. 16 is error given in the language as follows:

"Positive testimony of credible witnesses who were in a situation to know whether the whistle was blown or the bell rung, to the effect that the whistle was blown and the bell rung, is of a higher character than the negative testimony of the witnesses that they did not hear the whistle blown or the bell rung. But it is for you to determine from the testimony and the witnesses and the surroundings as shown by the testimony, whether the whistle was blown or the bell rung on the train in question when it approached the crossing in question." (Abs. page 37.)

Because it invades the province of the jury, and ignores all modifying circumstances, and assumes that no positive testimony was offered by the plaintiff that no signals were given. Louis v. Lake Shore, etc. Railway Co., 111 Mich. 458; Humphries v. State, 100 Ga. 260; Con. St. Ry. Co. v. Bingham, 105 Ga. 498; Greany v. Long Isl. R. Co., 101 N.Y. 419; State, et al. v. K. C. Ft. S. & M. Ry., 76 Mo.App. 634; Farmers & M. B. v. Chaplin Transfer Co., 23 Vermont, 186; See 44 Ill.App. 342; 149 Ill. 202; Lighthouse v. Chicago M. & St. P. Ry., 3 S. Dak. 518; Kelley v. Shapp, 60 Wis. 76; Nelson v. Iverson, 24 Ala. 9; Standard v. Kelley, Adx. 50 Ala. 452; State v. Gates, 20 Mo. 400.

Messrs. Bennet, Harkness, Howat, Sutherland & Van Cott, for Respondent.

It is insisted by the appellant that the court erred in sustaining the objection of the defendant to questions put by the plaintiff's attorney to the witnesses Johnson and Graham as to whether they were in a position where they could have heard the train if it had whistled.

In support of the contention counsel for appellant cite several cases which we have examined. In none of them, however, has the Supreme Court reversed a judgment of the court below for refusing to permit witnesses to testify as to whether or not they were in a position where they could have heard the train if it had whistled. They are all cases where the court below admitted that character of testimony, and the Supreme Court in the different cases refused to reverse the judgment of the court below because of the admission of that testimony.

It is the general rule that the witness shall state the facts, and not his conclusions from the facts. Helton v. Railroad Co., 12 So. 276; Houston, etc., Railroad Co. v. Smith, 52 Tex. 178; Taylor v. Railroad Co., 39 A. & E. R. R. Cases, 259 S. C., 10 S.E. 29; McGeary v. Old Colony R. R., 41 At. 1007; Kiesel v. Sun Office, 88 F. 243; Murray v. Railway Co., 16 Utah 356; Parkhurst v. Masteller, 57 Iowa 476; Butler v. Iron Co., 22 Conn. 335.

Testimony of credible witnesses that they did not hear the bell rung or whistle blown is of a lower character than that of credible witnesses that they heard the bell rung or whistle blown. Bohan v. Ry. Co., 61 Wis. 391 (21 N.W. 241); Still v. Hindenkopers, 17 Wall, 394; Moran v. Ry. Co., 48 Minn. 46 (50 N.W. 930); Hauser v. Ry. Co., 147 Pa. St. 440 (23 At. 766); Ry. Co. v. Reed, 40 Ill.App. 47; Horn v. Ry. Co., 4 C. C. A. 346 (54 F. 301); Culhane v. Ry. Co., 60 N.Y. 133, 137; Ry. Co. v. Lane, 33 Kan. 702 (7th Pac. 587); Ry. Co. v. Pierce, (Kan.), 18 P. 305; Hess v. Ry. Co. (Pa.), 37 At. 568.

BASKIN, J. BARTCH, C. J., concurring in the judgment. MINER, J., concurring in the order.

OPINION

[22 Utah 351] BASKIN, J.

The plaintiff, who is the appellant, as administratrix of the estate of Charles Haun, deceased, instituted this suit to recover from the defendant corporation damages alleged to have been caused by the defendant in negligently and carelessly causing the death of said Charles Haun. Among the negligent acts alleged in the complaint are the following in substance: That the defendant, in violation of its duty, ran at a careless and negligent speed to wit, about fifty miles per hour, over the crossing of the public highway in the town of Murray, one of its trains, and negligently, carelessly and in violation of its duty failed to give warning of the approach of said train by [62 P. 909] sounding a whistle or ringing a bell, and that while the deceased was driving a team and wagon over the intersection of said public highway and the defendant's railroad, in said town of Murray, by reason of the alleged negligence and carelessness of the defendant, he was struck by said train and killed.

The answer denies the alleged negligence and carelessness and alleges that the death of the deceased was caused by his own negligence.

Among the instructions given to the jury by the court at the trial was the following: "Positive testimony of credible witnesses who were in a situation to know whether the whistle was blown or the bell rung, to the effect that the whistle was blown and the bell rung, is of a higher character than the negative testimony of witnesses that they did not hear the whistle blown nor the bell rung. But it is for you to determine from the testimony of the witnesses, and the surroundings, as shown by the testimony, whether the whistle was blown or the bell rung on the train in question when it approached the crossing."

This instruction was objected to by plaintiff's attorney, [22 Utah 352] and the objection having been overruled, a general exception thereto was taken. General exceptions were also taken to instructions Nos. 10, 11, 12, 13 and 14, each of which contain independent propositions, some of which are correct.

It is well settled and has been frequently decided by this court that general exceptions will not be considered by the appellate court, unless the whole instruction so excepted to is incorrect. Scott v. Min. & Mill Co., 18 Utah 486, 56 P. 305, and cases there cited; Wall v. Niagara Min. & Smelt. Co., 20 Utah 474, 59 P. 399; Pool v. Southern Pac. Co., 20 Utah 210, 58 P. 326.

The exception to instruction No. 16 is as follows: "The court erred in giving to the jury instruction No. 16, and to the giving of which plaintiff duly excepted." A like exception was also taken to each of the instructions respectively numbered 10, 11, 12, 13 and 14.

The engineer and fireman on the train testified, on behalf of the defendant, that the whistle was blown and the bell rung. At least ten other witnesses, several of whom were passengers on the train testified, on behalf of defendant, that they heard the whistle, but were not asked, and did not testify whether or not the bell was rung.

On behalf of the plaintiff several witnesses who were in view of the place of the accident, and in a position where they could easily see and hear what transpired, testified that they neither saw or heard the whistle or the bell; that their hearing was good, and that their attention was directed to the approaching train, and to whether the whistle was blown and the bell rung.

On behalf of plaintiff Mrs. M. J. Leonard testified, as follows: "Observed the passenger train. * * * I just heard it coming there on a fast speed. Q. What attracted your attention? A. It was coming so fast and did not [22 Utah 353] whistle between the smelter and the station. Q. It didn't whistle where it usually whistles, did it? A. No, sir. Q. You say you observed it, and the train didn't whistle? A. Yes, sir; the train didn't whistle. Q. For the Murray station? A. Yes, sir. Q. It didn't ring the bell? A. No, sir."

On cross-examination she was asked the following questions, and answered, as follows: "Q. Of course you can't say that the whistle didn't blow, you can only say that you didn't hear it? A. I didn't hear it--it didn't blow between the Germania smelter and the station. Q. You testified that the bell didn't ring. Did you mean to say that you could have heard the bell ring had it been sounded? A. Yes, sir; I always can."

The sounding of a locomotive whistle and the ringing of a locomotive bell are events of such striking character as to naturally attract attention, and are readily heard and seen by persons of good hearing and sight, who are near by and are giving attention.

When, as in this case, two witnesses, the engineer and firemen who are employees of the defendant company, testify that such events occurred, and a greater number of other witnesses, who were near the place of the alleged events, and at the time of the alleged occurrence were in a position where they could have easily seen and heard such events had they occurred, testify that their attentions were directed to what transpired, but that notwithstanding their senses of hearing and seeing were good they neither heard nor saw such events, and one of the latter witnesses also positively testifies that no such events took place, the negative testimony of the...