Lee v. Chi., R. I. & P. Ry. Co.
| Decision Date | 19 May 1890 |
| Citation | 80 Iowa 172,45 N.W. 739 |
| Parties | LEE v. CHICAGO, R. I. & P. RY. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Mahaska county; W. R. LEWIS, Judge.
On the 8th day of December, 1886, while the plaintiff was crossing the defendant's road with his team and wagon, they were struck by an engine, and one horse killed, and the other horse and the wagon were injured; and this action is to recover the damage sustained thereby. From a judgment for plaintiff the defendant appealed.Thos. S. Wright and Geo. W. Lafferty, for appellant.
Phillips & Greer and Bolton & McCoy, for appellee.
1. The negligence urged against the defendant in the operation of its train, whereby the accident is said to have occurred, is a failure to blow the whistle or ring the bell as the train approached the crossing. Several witnesses were examined on this point by the respective parties; and the proposition urged by appellant is that, as to the ringing of the bell and the blowing of the whistle, the testimony on the part of the defense is positive or affirmative, while that on the part of the plaintiff is negative, and that the value of the positive testimony is so much greater than that of the negative that, as a matter of law, it should outweigh it, and reverse the judgment because of a failure to establish the negligence of the defendant. In support of this proposition appellant quotes from the opinion in the case of Ralph v. Railway Co., 32 Wis. 182, wherein the court has employed the language of Mr. Greenleaf in his work on Evidence, (volume 3, § 375:) “That the positive testimony of one creditable witness to a fact is entitledto more weight than that of several others who testify negatively, or at most to collateral circumstances, merely persuasive in their character.” Appellant's selection of a case wherein the rule is cited is indeed apt; for it so happens that in that case two witnesses testify as to the delivery of rope for shipment,--one testifying positively to its delivery, and the other giving negative testimony based on circumstances “merely pursuasive in their character,” and the witnesses were exactly alike as to their credibility. In that case the court reversed a judgment based on evidence of such a negative character. But will it be said that, in all cases where one witness shall give positive testimony as to a particular fact and one or two witnesses shall give negative testimony as to such fact, the positive testimony shall prevail? Suppose three persons are observing an approaching train, and the purpose of each is to know if the bell is rung as it approaches a crossing, and their means of knowing the fact are alike, if one shall testify that it did ring, and two that it did not, will the positive testimony, as a matter of law, prevail over the negative? We deal now only with what the law will declare. It is not a question as to which testimony is the most convincing. A careful examination of the rule quoted will show that it does not apply to cases in which the negative testimony is based on direct observation as to the particular facts to be determined, but its application is generally limited to cases in which negative facts are sought to be established by proof of collateral circumstances or facts. The rule has a fair illustration in the case at bar. Some of the witnesses for the plaintiff, testifying as to the ringing of the bell or the sounding of the whistle, merely say they do not remember of hearing either. Their testimony is only as to their recollection. They do not testify positively that they did not hear them, nor that they were not sounded. If all the testimony on this branch of the case was of this character, we should, as at present advised, incline to appellant's position, and hold the testimony, as a matter of law, insufficient. Such, however, is not the case.
To our minds, there is a plain conflict of testimony on this branch of the case. Pliney Jewell, in his testimony, says he heard the train coming from the east, and heard it whistle for the second crossing, east of where the accident occurred; that he was on a load of hay, with his team standing, and he was watching the train. He says: He then said: “That was the first whistle I heard after passing the second crossing east of there.” This testimony would have been no more positive nor stronger if he had said the train did not whistle after passing the second crossing. Such a statement would have meant no more than he did not hear it. His sense of hearing, in such a case, would be his only means of knowledge. To this may be added the testimony of the plaintiff that he was listening and looking for trains, and did not hear either alarm. This testimony is plainly in conflict with that of the defense, which is to the effect that both alarms were given. If we concede that, to our minds, the testimony preponderates for the defendant, we are not justified in reversing.
2. It is urged that the testimony shows without conflict that the plaintiff was guilty of contributory negligence, and for that reason he cannot recover. It is claimed that with proper care the plaintiff could have seen or heard the approaching train, and thus avoided the accident. In this respect, too, we encounter a conflict of testimony, over which we have no control. Certain measurements were made, and observations taken, at the instance of appellants, which, if accepted alone, would show that the plaintiff, in approaching the railroad with proper care, would have observed the train approaching. But these observations and measurements were not made at the time of the accident or so near it that the conditions were necessarily the same. In fact, it appears affirmatively, in some respects, that they were different; and in many respects, under the testimony, the jury might have found them different. The testimony shows that at the time of the accident the view of the track from the...
To continue reading
Request your trial