164 Mo. App. 701 | Mo. Ct. App. | 1912
Lead Opinion
On March 18, 1910, after sundown and about dusk, respondent was driving a team hitched to a buggy on a public highway in Jasper county where the same crossed the track of appellant’s railroad, and his team became frightened at appellant’s freight train and ran away, and he was permanently injured. He instituted this suit for damages, alleging that the agents and servants of the appellant in charge of the train failed to give any statutory signals for the crossing, and also that they negligently and carelessly permitted an unusual amount of steam to escape from the engine on such highway, thereby frightening plaintiff’s team. The suit was instituted in the circuit court of Barton county, and was there tried before a jury on the eleventh day of April, 1911, resulting in a verdict in favor of the plaintiff for five thousand dollars. A motion for a new trial was filed and overruled and the company appealed to this court.
It appears from the evidence that plaintiff was driving north on the public road which runs north and south, and that the railroad track runs southeast and northwest intersecting the public road at an acute angle. Plaintiff was driving two ponies to a single buggy. With him in the buggy was a young man named Shelton who was leading five head of mules belonging to plaintiff. The plaintiff was coming from the south and the train from the southeast. On the east side of the public road was a peach orchard. The plaintiff with his team and the mules passed over the
Tbe plaintiff testified that be bad crossed tbe railroad at this crossing eight different times during tbe fall and winter preceding tbe time be was injured and that no signals were given for tbe crossing. He also stated that steam was escaping from tbe engine at tbe time it passed tbe crossing on tbe day of tbe accident. Tbe defendant offered no testimony tending to contradict tbe above facts, and offered no evidence of any of its employees in charge of tbe train or otherwise that it gave tbe proper statutory signals when approaching tbe crossing, and therefore they may be conceded for tbe purposes of this appeal as being true.
Tbe plaintiff testified at the trial that bis mules were not accustomed to trains, and knowing of tbe public crossing, be was on tbe lookout for approaching trains; that be was driving about three miles an hour, in a slow trot, and that be both looked and listened for an approaching train after be passed tbe corner of tbe orchard and neither saw tbe train nor beard any signal.' That tbe orchard comes to a Vsbape, tbe point of tbe V being made towards tbe crossing by tbe public road on one side and tbe railroad on tbe other; that traveling on tbe public road, when be bad passed tbe last tree in tbe orchard, tbe railroad track would be about twenty-five or thirty feet from him; that be could not see a train approaching tbe crossing from tbe southeast because tbe railroad comes up out of a valley and trains come through a dirt cut which is grown up with weeds, brush and “stuff,” and that you cannot see back southeast until you get on tbe railroad track; that until you get within ten feet of tbe crossing you positively cannot see a train coming because tbe weeds, grass and “stuff”
Appellant’s principal assignment of error is that the court erred in refusing to sustain its demurrer at the close of all the evidence in the case.
As above stated, the respondent testified that he both looked and listened for an approaching train; that the statutory signals were not given, and that he did not hear the train and could not see it because the weeds and brush and “stuff” growing on the bank between him and the railroad track obstructed his view.
Section 3140, Revised Statutes 1909, provides that servants of railroad corporations in charge of its trains on approaching public crossings shall ring the bell or sound the whistle as therein provided, under a penalty, and also that such corporation for failure to comply with such statute shall be liable for all damages which any person may sustain at such crossing when such bell is not rung or such whistle is not
It must he conceded that plaintiff’s evidence made for him a prima facie case, and the burden of proving that plaintiff was guilty of negligence directly contributing to his own injury was upon the defendant.
In addition' to his own testimony, the plaintiff offered the testimony of Clifton McNallie and of James T. Koonce.- Mr. McNallie had lived near the crossing for many years and was living there at the time of the injury- and at the time of the trial. On direct examination he testified that on account of the orchard an approaching train could not be seen until the orchard was passed. On cross-examination he testified as follows: “Q. Now, after he had cleared the orchard there would be nothing to prevent his seeing the train if he had looked in that direction? A. No. Q. So when he would be fifty feet at right angles with the railroad, and farther from the crossing, he could both hear and see the train? A. Yes, sir; that is, if he turned around and looked back he could see.” This evidence was given by deposition nine months after the accident; and as to such testimony, it was open to the observation of the jury that neither party inquired of him during the taking of his testimony as to the basis of his opinion, or whether he had ever had his attention particularly called to the matters concerning which he testified, or whether he had ever observed as to the obstructions along the right of way which plaintiff claimed obstructed his view on the day of the accident. Mr. Koonce testified that he was working for Mr. McNallie at the time of the accident, but had never examined the crossing particularly until a few days before the trial; that on the day of the accident he saw the train approaching the crossing, and that the whistle was not sounded and the bell was not rung for the crossing; that a few days prior to the trial he was at the crossing, and that standing at
In behalf of the defendant six witnesses testified, among them being the young man named Shelton who was with plaintiff at the time of the accident and also the photographer who took the photographs referred to by the witness Koonce. These witnesses testified that from a point two hundred and forty-five feet dr two hnndred and fifty feet south of the crossing the plaintiff could have seen the approaching train for almost one-half mile before it reached the crossing.
In addition to the testimony of these witnesses, three photographs which were taken five days before the trial were offered in evidence after the same had been identified and declared to be correct by Koonce and the photographer. These photographs corroborated the testimony of all the witnesses on this question, except that of the plaintiff, and showed that a person standing two hundred and forty-five feet south of the crossing in the public road could see the bottom of the whistling post one-fourth mile from the crossing, and even the wheels of the ears of a train.
Although the photographs were taken more than a year after the accident, they were admissible in evidence because plaintiff testified that he had been out to the crossing a few- days before the trial and that' there was relatively no change in the surroundings.
These witnesses for the defendant went to examine the place of the accident at the request of the de
As we have stated, the burden of proving contributory negligence rested upon the defendant. Why the attention of its several witnesses was not called to the conditions as to seeing the right of way or an approaching train at points other than this one point is not explained. Nor was any of these witnesses asked whether there was any brush, weeds or grass growing along the right of way as plaintiff had testified.
It is contended however by appellant that the testimony of plaintiff that he looted and listened for the train and did not see it is not entitled to any probative force but is absolutely contrary to the physical facts developed in the case and should as a matter of law be declared unworthy of consideration; that the photographs presented the physical facts to the jury and that as the plaintiff’s testimony is contradicted by the physical facts, the court should wholly disregard it.
The law seems to be settled that photographs duly verified are admissible in evidence as aids to the jury in arriving at an understanding of the evidence or of the situation or condition or location of objects or premises material or relevant to the issues, but they have not been held, as claimed by appellant, to be unimpeachable evidence, or as standing on the same basis as physical facts. The general rule is that photographs stand on the same footing as diagrams, maps or models and rest to some extent on the credit of the witnesses, in the same way as a map, plat or plan. In careless or inexpert hands, photographs are capable of very serious misrepresentation of the original and their value depends upon their accuracy. They must be shown by extrinsic evidence to be faithful representations of the place or subject as it existed at the time involved in the controversy. In no case has it been held that they are entitled to the same consideration as evidence as conceded physical facts, but the principle is established that they go to the jury for their consideration and that the weight to be given them is to be determined under the same tests as are applied to other evidence. [Fuller v. Robinson, 230 Mo. 22, 130 S. W. 343; Baustin v. Young, 152 Mo. 1. c.
The law as to tbe weight to be given to physical, facts is fully recognized in this state to the effect that where the established physical facts and common observation and experience conflict with the testimony of a witness, such testimony must yield and the statement of the witness does not amount to substantial evidence of the facts testified to and cannot be accepted as the basis of a verdict or judgment. [Phippin v. Railway, 196 Mo. 1. c. 343, 93 S. W. 410; Champagne v. Hamey, 189 Mo. 1. c. 726, 88 S. W. 92.]
The evidence offered in this case as to the physical facts is conflicting and hence does not bring it within that class of cases where it is held that when the physical facts surrounding the injury are conceded and consequently one of two conclusions must inevitably be drawn — either that the plaintiff did not look and knowingly drove upon the railroad track and was injured, or that he did look and saw the approaching train and attempted to cross in front of it and was thereby guilty of contributory negligence — and hence recovery would in either case be barred by his contributory negligence. On the contrary, the plaintiff in this case testified that on the day of the accident, weeds, grass and brush were growing along the. railroad right of way and which he claims hid from his view the approaching train. Such objects as he testified to were easily removable and could not properly be classed as permanent physical facts. . Hence it was not physically impossible for plaintiff to have failed to see the train on March 18, 1910, because of obstructions, and yet that the other witnesses a year afterward could see it on the public road at the point of the orchard. As to whether the conditions existing at the time of the accident were truly stated by plain
In this case tbe plaintiff by bis evidence bad admittedly made a prima facie case and thereafter tbe trial proceeded upon tbe defendant’s plea of contributory negligence. At tbe conclusion of all tbe evidence tbe defendant asked for a directed verdict on tbe ground that tbe proof was uncontradicted and unimpeached as to its affirmative defense of contributory negligence and asked tbe court to declare as á matter of law that it was entitled to a judgment notwithstanding tbe prima facie case made by tbe plaintiff. It is to be seen that defendant, as far as its plea of contributory negligence is concerned, occupies tbe logical position of a plaintiff in tbe proof of its affirmative defense, and yet it asked tbe court as a matter of law to pass upon the conclusiveness of tbe testimony offered upon this issue.
In considering tbe question thus raised, a distinction is to be recognized between a demurrer to a party’s evidence and a directed verdict by tbe court in its favor. In order to sustain a demurrer to tbe evidence for failure to make out a prima facie case it is not necessary for tbe court to pass on tbe credibility of tbe plaintiff’s witnesses; their credibility is not only assumed, but tbe probative facts are given every reasonable intendment in order to ascertain tbe plaintiff’s right of recovery. But a verdict for a party peremptorily directed by tbe court upon evidence mainly oral in cases where the burden of proof is on such party occupies an entirely different relation to tbe established principles of law. It has often been held in other jurisdictions that uncontradicted oral
Our attention has been called to sporadic cases in this state which have held that while contributory negligence is a matter of defense and the burden of proof as to that defense rests upon the defendant, still if it appears without any conflict of evidence from the plaintiff’s own case or from the cross-examination of his witnesses or from other undisputed evidence in the case that the injured party was guilty of con-
While there is some apparent conflict in the holdings in these cases and the line of cases of which Church v. Railroad, supra, is an example, we take it that the rule as we have stated it is now the settled law of this state. In Gordon v. Burris, supra, the court in commenting upon this question used the following language: “The jury, it is said, must determine the credibility of witnesses and the weight to be given to their evidence, and a court, when it undertakes to pass upon the sufficiency of such evidence to prove a given fact, usurps the province of the jury. This rule has not been uniformly recognized in this state but was declared at any early day and has been generally followed in the later decisions.” This language
There is, apparently, a slight modification of this rule in cases in which the party on whom rests the burden of proof finds that his case is made by the testimony of the other party. This, however, is not .in conflict with the rule as we have stated it. A party by introducing witnesses vouches for their credibility and hence the weight and credibility of such testimony is eliminated from the consideration of the jury; and therefore when such party by the uncontradicted evidence of his own witnesses makes a case for his opponent, the court may give a peremptory instruction based upon that testimony. [Mockowik v. Railroad, 196 Mo. 550, 94 S. W. 256.] The only basis on which a peremptory instruction to find for the defendant in this case could be given would be that plaintiff’s own testimony affirmatively shows that he was guilty of contributory negligence. We do not think his testimony is of such a character as to warrant a peremptory instruction against him on that issue. Hence the trial court in refusing to give the directed verdict asked by defendant committed no error.
While plaintiff was on the witness stand he testified that as the engine passed over the crossing an unusual amount of steam was escaping.- This testimony was offered in support of an allegation to that effect contained in the petition. On cross-examination of the witness it developed that he was .not qualified to testify on that subject and the court permitted the plaintiff to withdraw from the jury all the testimony relating to this issue. The defendant asked the court
When it is remembered that plaintiff was not injured in a collision, but that his team was frightened by the approaching train, then it must be admitted that evidence as to the noise that the train was making and all that happened at the crossing was admissible in support of plaintiff’s theory that his team was frightened, and was competent as part of the res gestae or facts forming part of-the transaction, and we cannot say that the court committed error in not giving the instruction asked by defendant directing the jury not to consider the testimony.
Appellant also complains of plaintiff’s instruction numbered two. By this instruction the court told the jury that if plaintiff after becoming aware of the approaching engine could not with safety have turned around and escaped, and that plaintiff was in the exercise of due care at the time, and that failure to give one or the other of the statutory signals was the sole cause of the injury, the verdict should be for the plaintiff.
The plaintiff testified that he could not turn around on account of the ditch, and that he therefore concluded it would be safer to get over the track and he hurried across.
Technically speaking, the instruction is open to criticism although it does require the jury to find that plaintiff was in the exercise of due care at the time and it would have been better had it submitted in general terms the conduct of plaintiff while caught in the place of danger, but the law is that when a person is suddenly and without his own fault placed in a place of apparent danger, he is not required to exercise the
“The court instructs the jury that if the plaintiff Davidson at any time before he attempted to cross in front of defendant’s train, so close as to cause his team to be frightened and run away, could have by looking or listening for the approaching train seen, or heard the same coming, then your verdict must be for the defendant, no matter what other facts you may find and regardless of what is said in any other instruction.”
“The court instructs the jury that the duty imposed by the statute upon defendant railroad company to ring its bell or blow its whistle upon approaching a public railroad crossing does not relieve the traveler upon the public highway, and did not relieve the plaintiff of the duty of looking and listening for an approaching train, and that if you further find and believe from the evidence that by looking or listening for the approaching train plaintiff could have seen or heard the same in time to have prevented his team from running away by the exercise of ordinary care on his part, then your verdict will be for the defendant.”
For the reasons herein appearing the judgment is affirmed.
Dissenting Opinion
DISSENTING OPINION.
In Porter v. Railroad, 199 Mo. 82, 97 S. W. 880, it is said: “It is well settled in this state that when a traveler approaches a railroad crossing he must look both ways and listen for coming trains, and the negligence of the company in failing to give proper signals will not excuse the traveler’s duty to look and listen.”
It is also well settled that a railroad track is in itself a warning of danger, and one who attempts to cross it must act with care proportionate to the danger, and if the traveler, by looking, could have seen the train approaching, the mere fact that he testifies that he did look and did not see, does not entitle him to have the question submitted to the jury. [Sanguinette v. Railroad, 196 Mo. 466, 95 S. W. 386.]
I agree that in determining whether plaintiff, because of his own negligence, had a case for the jury, defendant’s testimony, where controverted, cannot be considered, and that plaintiff is entitled to the full force of all uneontroverted facts and to all his controverted evidence, and is to be allowed every reasonable and favorable inference of fact deducible from all the evidence; also that the question of contributory negligence is for the jury, where the facts are in dispute, and where though undisputed, they are such as to lead the minds of reasonable, men to different conclusions. I am also of the opinion the plaintiff, by his own testimony, made a prima facie case, and
The plaintiff, however, did not rest with his own testimony, but offered two other witnesses who testified that the train could have been seen for a half mile up the track by plaintiff at all times while he was on the highway, from the time he reached a point within 245 feet of the crossing until he had passed over the same. In other words, these witnesses testified that from the time the plaintiff came within 245 feet of the crossing, until he had passed over it, he had a plain view down the track for a half mile from the crossing, and could have seen the train coming for that distance. One of these witnesses had lived for thirty-four years in that neighborhood, and was examined by the plaintiff on direct examination for the purpose of showing that he was perfectly familiar with the crossing, and had observed the conditions surrounding it. The other witness had lived five or six years in the vicinity of the crossing, and was well acquainted with the surroundings. As stated in the majority opinion, these witnesses were corroborated by six disinterested witnesses who testified for the defendant, and also by three photographs, the correctness of which plaintiff did not dispute.
It is my contention that when the plaintiff’s witnesses testify to a certain fact and the witnesses for the defendant testify to the same fact, and there is no conflict in their testimony, there is no issue of fact
I do not find in this case, however, any such conflict in the testimony of the plaintiff and his witnesses. The plaintiff testified as follows:
“Q, When you travel along that public road west of the orchard and as you get further north, state how the obstruction of the trees is then, whether you can see better than when you are further south, or worse, as you get up nearer the north end of the orchard? A. You can’t see the train coming at all.
“Q. Why not? A. Well, it is a valley back there..
“Q. Back where? A. Back; about a half a mile back there is a valley there.
“Q. Public road or railroad? A. I mean on the 'railroad. There is a valley there, and trains, come right up out of that dirt cut, and that cut is growed up with weeds and grass and stuff, and you can’t see back that way for that until you get on the right of way; growed up with weeds and brush and stuff, and it is kind of a little cut there, and you couldn’t see the train no distance unless you got up onto the main track on the railroad; then you could look straight down the track and see it, but if you got out ten feet to one side you positively couldn’t see no train coming, because the grass and weeds and stuff there will hide the view of it,
“Q. Now, when you got to that point I have spoken of, that would be due west of the last three? A. Yes, sir.
“Q. Going a little further north of that, just
‘ ‘Q. Because of these things you have mentioned? A. Yes.
“Q. How far on north in the usable part of the public road before you can see any distance down the track? A. You will get in ten feet of the crossing before you can see any distance at all. You will get 220 or 230 feet north along the right of way before you can look back and see the train coming. You have got to get where you can look through that cut, because— it is not so very deep, but you take weeds and grass that grows up on that bank, will prevent you from seeing. . . .
“Q. In coming towards the crossing, within three or four hundred feet of the crossing, southeast, would it be an up grade or down grade, approaching the crossing from the southeast? A. Take it a half a mile south and it is in a valley. After it leaves that it comes to a little grade and on to a level.
“Q. About how far does that level begin from the railroad crossing? A. Well,.I couldn’t say. It is not very far, though.
“Q. Well, what is your mind of ‘not very far?’ A. Well, I could’nt say as to that.”
On cross-examination, he testified:
“Q. You took no measurements of any kind? A. No, sir.
“Q. There was another road crossing just, like that right down there — down there a half a mile? A. Yes.
“Q. And the train crossed that crossing before it crossed that crossing where your team was scared? A. Yes.
“Q. How is the road, up grade or down grade, from your crossing to that crossing? A. About level —I don’t know.”
In Richey v. Woodmen of the World, 146 S. W. 461, the Kansas City Court of Appeals, in an opinion by Judge Johnson, held, that where the witnesses of a party are supported by the witnesses of an adverse party, the uneontradicted facts must be deemed proved, and there is no issue for the jury. It is further held in that case that where the defendant relies on an affirmative defense, that such defense may be so clearly and indisputable established that its existence should be accepted by the court as proved in law, and where all the evidence in the case is of such character that it affords no room for reasonable controversy,
As I construe the majority opinion, it recognizes the correctness of the rule declared by the Kansas City Court of Appeals in the Richey case, and therefore, our differences are confined to the proper construction to be given plaintiff’s testimony. My associates are of the opinion that he did testify that he could not see the train coming, because of certain obstructions, while as I construe his testimony, he did not testify that such obstructions were within a quarter of a mile of the crossing. If I am correct, then the case falls within the rule of the Richey case, and the judgment should be reversed and the cause-remanded.