Missouri Pac. Ry. Co. v. Pierce

• Decision Date: 04 May 1888
• Citation: 39 Kan. 391,18 P. 305
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY v. J. W. PIERCE
• Court: Kansas Supreme Court

18 P. 305

39 Kan. 391

THE MISSOURI PACIFIC RAILWAY COMPANY v. J. W. PIERCE

Supreme Court of Kansas

May 4, 1888

Error from Miami District Court.

ACTION by Pierce against The Railway Company, to recover damages for the negligent killing of his cow.At the February term, 1886 verdict and judgment for plaintiff for $ 50 damages, and costs.The defendant company brings the case to this court.The facts appear in Mo. Pac. Rly. Co. v. Pierce, 33 Kan. 61 et seq., and in the opinion herein.

Judgment reversed.

W. A Johnson, for plaintiff in error.

Brayman & Sheldon, for defendant in error.

CLOGSTON C.All the Justices concurring.

OPINION

CLOGSTON, C.

The errors now complained of are, first, that the court erred in overruling the demurrer to the plaintiff's evidence; second, that the findings of fact, as found by the jury, are irreconcilable with the general verdict; third, that the court erred in refusing to instruct the jury as requested by the defendant.

Before this court would be authorized in holding that the court erred in overruling the demurrer to the evidence, it must be found that no competent evidence was given which would tend to support the verdict and judgment; not that a preponderance of such evidence be found.If any competent evidence was given, then this court will not disturb the judgment of the trial court, although we might believe that no sufficient evidence had been given, on which, had we been trying the case, we would have rendered the judgment.Counsel for defendant in error insist that there is competent evidence to show negligence on the part of the employes of the defendant.We think there is not much evidence of, or circumstances tending to show negligence, yet we think there is some evidence.Sherman Pierce testified that no whistle was sounded until the engine was within twenty feet of the cow, and that the crossing was in plain view of the engineer on the approaching train for seventy rods before he reached it, and that when he first discovered the train it was about 200 feet east of the crossing, and at that time some of the cows he was driving were nearing or on the crossing.Other witnesses did not hear any whistle sounded until the giving of the danger signal just before striking the cow, though they say they would have heard the whistle had it been sounded.If this testimony were true, and for the purposes of the demurrer it is so considered, then we think there was evidence tending to show negligence on the part of the defendant.

As to the second proposition, we shall not discuss it, as the last error assigned will dispose of the case so as not to require consideration of the other.The third error alleged is, that the court refused to instruct the jury as requested by it, and gave nothing in the general charge in any way covering the instructions refused.

The instructions refused, being numbers 13 and 14, are as follows:

"13.The plaintiff has introduced the testimony of some witnesses who state that they were in such position that if a whistle had been blown or the bell rung eighty rods before the train reached the street-crossing, that they could have heard it and the defendant has introduced the evidence of the engineer and fireman who were on the train at the time of the injury to plaintiff's cow, who testify that they did sound the whistle and ring the bell before the train passed the first street east of Locust street.The testimony of the plaintiff's witnesses that they were in such situation that if a whistle had been sounded or a bell rung, that they could have heard it, and that there was nothing to have prevented them from hearing it, is of a negative character, while the testimony of the defendant's witnesses that they did sound the whistle and ring the bell is of a positive character; and as a general rule of law the testimony of one who is a credible witness, who swears positively that the whistle of a locomotive was sounded, or the bell rung, is of much more value than the statements of a witness, equally credible, that he did not hear the whistle sounded or the bell rung.

"14.The negative testimony of a witness who did not see the passing locomotive, or give heed to the sounding of the whistle or the ringing of the bell, and who was in a situation to have heard the same, but did not hear it, and who may have been accustomed to the frequent sounding of whistles and ringing of bells, is entitled to but little weight as against the positive testimony of one who swears that he saw and heard the sounding of...