Bowers v. Atchison, Topeka & Santa Fe Railway Co.

82 Kan. 95 | Kan. | 1910

The opinion of the court was delivered by

Benson, J.:

The errors assigned relate to the admission of testimony, the instructions given and refused, the inconsistency of the findings, and the sufficiency of the evidence.

After describing the situation, and stating that the section of the train then moving forward had proceeded far enough to leave a space of ten or twelve feet upon the crossing between the front of’the standing cars and the rear end of the last car moving to the east, the plaintiff was allowed to testify that he had satisfied himself that the section in front was moving off the crossing; that is, in connection with the circumstances detailed he was permitted to testify to his belief of a fact — to explain why he then stepped into this space to. ad just the air brakes. In a situation like that in which the plaintiff was placed testimony of belief is proper.

“The condition of a man’s mind with reference to what he thinks, feels, believes, intends, and his motives, is always a fact, and it is a fact which is often required to be ascertained both in civil and in criminal cases; and only one person in the world has any actual knowledge concerning that fact, and that person is the one whose condition of mind is in question; and where he is a competent witness to prove such condition he may testify to the same directly. Other witnesses can testify only to extraneous facts tending to prove this condition. He may also testify to such extraneous facts, but he may testify directly as to what the condition of his own mind is or was at any particular time, or on any particular occasion.” (Cardom v. Woodward, 44 Kan. 758, 761.)

This rule is supported by a note following the report of the above case in 21 Am. St. Rep. 314. The argument to the contrary is generally repudiated. (8 Wig. Ev. § 1965.)

The instructions requested were to the effect that the plaintiff’s belief was immaterial; that under rule 313 ne was bound to know that his signal had been understood and heeded, and bound to wait until the train was clear of the crossing before going into the space between the two sections of the train. Instead of the instructions requested the court gave the following:

“(17) Under the defendant’s rule 313, which has been introduced before you in this case, it was the duty of the plaintiff, before placing himself in a dangerous position between the ’cars at the time in question, not only to know that his signal or signals, if any he gave to the engineman or fireman, had not only been seen and understood by such party or parties, but it was plaintiff’s duty also to know that such signal had been obeyed; and even though plaintiff knew that any such signal given by him was seen and understood by the party to whom he gave the signal, yet, if without waiting to see and know that such signal would be obeyed, plaintiff went in between the cars at the time and place in question and received any of the injuries complained of, and such injuries were caused by reason of plaintiff’s failure to wait and learn that such signal had been obeyed as well as seen and understood by the party to whom it was directed, then your verdict should be for the defendant.

“(18) The word ‘know,’ as used in rule 313, has the sense in which it is ordinarily understood. It does not necessarily import absolute knowledge of a fact which actually exists, but it means full assurance and belief to the exclusion of doubt or uncertainty of a reasonable and prudent man based upon convincing evidence •addressed to his intelligence or senses.

If absolute certainty of the fact is required by the language of the rule, the instruction given was erroneous and the one requested should have been given. A brakeman in such a situation, sixteen car lengths from the engine, can not “know that the engineer has seen, understood and obeyed” his signal otherwise than by observing what the engineer does in response to it, and whether he acts in obedience to the rule in view of such observation is a question for the jury. Mr. Justice Strong, in Shaw v. Railroad Co., 101 U. S. 557, said: “It may fairly be assumed that one who has reason to believe a fact exists, knows it exists. Certainly, if he be a reasonable being.” (Page 566.)

It is possible that some further qualifications should be added to this definition in interpreting the rule in question, but it should not be construed so as to prevent action until absolute certainty beyond all possibility of mistake — if that is ever attainable — is reached. So to hold might delay operation, or prevent action when imperatively necessary, and lead to results more serious than those the rule was designed to prevent. Even in criminal prosecutions for receiving stolen property knowing it to have been stolen it is held, as stated in a case note in 22 L. R. A., n. s., 833, that “in no case has it been held that absolute knowledge must be shown in such prosecution, though it is frequently said that there must be more than a mere belief dr supposition that the goods had been stolen.” The appellant has no ground to complain of the interpretation of the rule given by the district court nor of the other instructions given.

It is contended that the findings that when the engineer moved forward to get slack he did not believe that he was obeying the plaintiff’s signal, and that he did not honestly believe that such acts were necessary to obey the signal, are contrary to the undisputed evidence. It is true that they are contrary to the engineer’s testimony, but the plaintiff testified that he gave but one signal for slack, and the jury found this to be true. The engineer could not honestly obey, or obey at all, a second signal which had not been given. But it is said that these' findings are inconsistent with others wherein the jury stated that in going forward and then back the engineer could more effectually back the train, and that he was then under the impression that the train had not parted and that this course was necessary. All this may have been true, as the jury found, and yet it may have been true, as the jury also found, that he did not do this in obedience to any signal. In other words, acting upon a mistaken assumption, he proceeded without signals to do the acts which injured the plaintiff. It was his duty to be governed by the .signals. It is true he testified that he received a signal, which, had it been given, would have authorized the act; but the jury have said that such a signal was not given, therefore it could not have been received, and this finding, approved by the district court, determines the fact.

It is contended that the evidence does not support the allegation that the engineer knew or ought to have known that the plaintiff was between the' cars when he moved the train backward. The engineer knew that the purpose of this movement was to release the pin that the cars might be uncoupled to open the train at the crossing. He knew that the duties of the brakeman required him to go between the cars. He testified: “If I had looked and noticed Johnnie Bowers was out of sight I would have concluded that he was between the cars.” That was the place he would naturally expect him to be after the train moved forward sufficiently to impart to the plaintiff knowledge that his signal had been obeyed. Upon all the evidence it can not be held that there was no testimony to support the material findings.

Some minor rulings were excepted to, but are not commented upon. No error is found in the proceedings. The judgment is affirmed.