Murphy v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 04 December 1944
• Docket Number: 38893
• Citation: 183 S.W.2d 829,353 Mo. 697
• Parties: Mary Louise Murphy, Appellant, v. Atchison, Topeka & Santa Fe Railway Company, a Corporation
• Court: Missouri Supreme Court

183 S.W.2d 829

353 Mo. 697

Mary Louise Murphy, Appellant, v. Atchison, Topeka & Santa Fe Railway Company, a Corporation

No. 38893

Supreme Court of Missouri

December 4, 1944

[Copyrighted Material Omitted]

Reported at 353 Mo. 697 at 704.

Original Opinion of November 13, 1944, Reported at 353 Mo. 697.

OPINION

PER CURIAM.

On Motion for Rehearing.

In her motion for a rehearing the appellant points out that we have misstated a fact. It is said that our determination of this cause is based on that erroneous misstatement of fact. To demonstrate that Mrs. Murphy could and would have backed the automobile off the track within the 300 to 350 feet (the three to three and a half seconds) we said that her expert witness, a service manager of a Chevrolet company made certain tests and that "He placed a 1941 Chevrolet business coupe upon the track so that the bumper would extend to the inner rail and by a stop watch backed it clear of the tracks in 'two to two and a half seconds.'" We said: "To the rhythm of a stop watch he said: 'I was able to back off there in two to two and a half seconds.'" The misstatement consists in the use of the word "stop." A "stop watch" was not used and no witness used the word "stop." The fact is the witness said: "Well, the test that we made was by driving up onto the railroad track to where the front of the bumper, the foremost front part of the bumper would extend to the inner rail, and backing it back clear of what a locomotive would clear, the clearance of a locomotive back off the crossing. We did that in something like two seconds, two seconds and a half by the watch. We arrived at that time by observing the second hand on the watch and counting it in a manner of 1, 2, 3, as seconds, and by making the test trial I was able to back the coupe off of there in two to two and a half seconds." Or, as appellant's counsel state in their brief: "In making the tests they practiced counting seconds as nearly as possible with the rhythm of the second hand of a watch, and then counted as they drove the automobile. The car was started and driven clear of the track, as the other called off, one, two, three, and the seconds and parts of a second were thus estimated, and the time estimated as from two to two and a half seconds." But modifying the opinion accordingly, striking out the word "stop," and using the language of the witness or counsel's paraphrase of it, "with the rhythm of the second hand of a watch," the fundamental, determinative facts remain unchanged.

It is true that all the evidence as to time and distances was an "estimate" based on best judgment and in dealing in half seconds, two and a half seconds or even three seconds reasonable minds may differ and a calculation of four or five tenths of a second may be ...