167 Mo. App. 647 | Mo. Ct. App. | 1912
(after stating the facts). — I. Defendant assigns as error the trial court’s refusal to direct a verdict for the defendant. Such refusal was proper unless defendant’s nonliability was affirmatively and conclusively established by the evidence. Where, as here, the evidence showed an injury at a public crossing by a train colliding with a person driving across the track, when the bell was not rung or the whistle sounded, a prima facie case was made, and the burden of proving nonliability was then shifted to the defendant. [Weigman v. Railroad, 223 Mo. 699, 123 S. W. 38.]
The only suggested basis for defendant’s claim of nonliability is, that plaintiff was negligent in going upon the track in front of the moving train when he saw or by the exercise of ordinary care could have seen the train in ample time to avoid going upon the track into danger. Did the evidence conclusively show this? There is no evidence that plaintiff actually saw the train or its headlight before his horses were upon the track and it was too late to get across or back up (the train struck before he could even reach his whip), except the statements attributed to plaintiff as having been made by him the night of the tragedy and the morning after. Defendant argues that plaintiff’s conduct in failing to deny or explain such statements amounts to an admission that he made them. We need not discuss that proposition. If he made them, it was the duty of the jury to give them just weight in settling the questions of fact involved in the cause, but they were by no means conclusive of the fact alleged
Defendant also contends, however, in effect, that the noise and rumble of the train was sufficient to warn the plaintiff not to go on the track and that the failure to heed such warning was contributory negligence as matter of law. There was testimony, though by no means conclusive, from which it might be inferred that the train made a noise, other than giving the statutory signals; indeed it may be, as defendant suggests, that courts will take judicial notice that trains make a noise in running, and the jury might possibly have inferred that in the circumstances plaintiff was placed, he was guilty of contributory negligence in not hearing and heeding such noise. If, however, the court will take judicial notice that the train makes a noise, and on that mere fact, assumed without proof, convict plaintiff of contributory negligence or compel him to affirmatively exculpate himself, what becomes of the rule in these crossing cases that proof of failure to give the statutory signals and of the accident makes a prima facie case and shifts the burden of proving nonliability to the defendant? [Weigman v. Railroad, supra; McNulty v. Railroad, 203 Mo. 475, 101 S. W. 1082.] It is clear that it would be annihilated. As it was laid down by statute, as construed and upheld by our Supreme .Court,- it is not for us to destroy, but to-uphold and follow it. It follows, then, that it must
Defendant urges, however, that “to move to a crossing at a rapid rate of speed where the view was obscured is negligence, and ordinary care requires that when one cannot see, he should stop to make more careful observation.” In the first place, plaintiff did not approach “rapidly,” but at a slow trot. Whether he knew that his view was being obstructed or thought he was looking into mere darkness, is a serious question, as to which the testimony does not enlighten us. This we know, that he was not familiar with his surroundings; and defendant’s witness Maxey testified that it was “very dark,” “awful dark.” We cannot presume under these circumstances that he saw or knew of the obstruction, or should have seen or known of it. The question whether he was negligent in that respect was for the jury and not for the court to decide under the circumstances.
It follows also, therefore, that the court properly refused to give defendant’s instruction No. 4, which declared it to be the duty of plaintiff to stop and look and listen if the embankment and vegetation would prevent his seeing the approaching train, without regard to whether he saw or knew of the obstruction or should have seen or known of it.
We may mention here that defendant urges that the evidence showed that plaintiff had made himself careless by “the use of whiskey.” It appears from the
II. It is also urged, however, that the demurrer to the evidence should have been sustained for the alleged reason that there was no evidence in the case that plaintiff’s deceased daughter was single and unmarried and that she left no husband or minor child or children surviving her. If such facts were not conceded at the trial, it was necessary for plaintiff to establish them, and no presumption that the deceased had never been married is to be indulged merely because she was of tender years, she being over the age when she might lawfully contract marriage, viz.: twelve years. [Marshall v. Consolidated Jack Mines Co., 129 Mo. App. 649, 108 S. W. 573.] The marriage of a child of twelve and one-half years of age is so improbable, however, so contrary to common experience in this State, that slight evidence would be sufficient to establish the contrary; and such evidence need not be direct and positive, but may be shown by facts
III. It is conceded that the court erred “in allowing the witness, Pritchett, to state that he thought a person would have to get within five feet of the south rail to see up the track.” Pritchett, who was the postmaster at Martinsburg, having resided there fifteen years, living north of the crossing, and often passing oyer it, testified that the embankment right at the crossing was four or five feet higher than the railroad track, and about four feet higher than the wagon road; that
On cross-examination defendant’s counsel elicited from the witness that “if the grass was growing there” one “would have to get up within five foot of the rail to see a train probably 300 feet;” that he never looked particularly to see a train; that he does not know how high a train is, “supposed to be ten or twelve feet.” “Q. If you never looked to see a train, how do you know you couldn’t see one? A. Simply because I would think a man would have to be that close to it to see up the track. Q. Tou mean to see along the track, the rail along the track? A. I mean to see up the track, yes, sir; if you can see the rail, you can see above it.” Mr. Robertson: “Now I move to strike out all this witness’s testimony on the ground it’s simply shown to be his conclusions and not based on any facts.” The motion was overruled and exception saved. Proceeding further the defendant’s counsel elicited from the witness that he did not know how high a box car or headlight is; that an engine and smokestack is probably higher than a car; that if a headlight was twelve feet high, a man standing back ■fifty feet from the crossing might see it; that he does not get on higher, but on lower, ground as he goes toward the track, because the ground is worn out there, there is a little, probably a foot, decline, going toward the track; the embankment is-at least five feet above the railroad and has a rail or plank fence on it four feet high, which would make about nine feet, and one sitting in a buggy would be within twenty feet of such obstruction; that the fence was not solid and the light would shine through its cracks if there was nothing to prevent, in the way of grass; that the eye of a man six feet tall standing down in the road would not be
Now if the admissions which the witness made in his cross-examination had the effect of rendering part of his testimony incompetent, a proper motion should have been made, specifically pointing out the objectionable part and asking that it be stricken out. No such motion was made, but each motion was so broad and indefinite that to have sustained it as made would have had the effect of striking out all of the witness’s testimony. The motions that were made were properly overruled because, even though some of the witness’s testimony was incompetent, all of it was not. [See Ferguson v. Davidson, 147 Mo. 664, 672, 49 S. W. 859.]
IY. The point is made that the trial court erred in admitting in evidence a bundle of weeds and grass because “.they were shown not to be in the condition that they were when standing upon the ground.” It is not questioned but that they were properly identified as being part of the same weeds and’ grass which obstructed the plaintiff’s view, but it is urged that because it appeared that the weeds and grass had dried and were tied in bundles, they gave a false impression as to their condition while standing on the ground. The weeds and grass being sufficiently identified were properly admitted in evidence. [Connor v. Wabash Ry. Co., 149 Mo. App. 675, 129 S. W. 777.] Nor do we think that the circumstance that they had dried and were tied into bundles when shown to the jury was sufficient to render them inadmissible in evidence. The difference between their appearance when green and growing and the time when they were shown to
V. Defendant complains of the instruction on the measure of damages as follows:
“If under the evidence and the other instructions given in this case you decide to find a verdict for the plaintiff, then you may return a verdict in a sum, not less than two thousand dollars and not exceeding ten thousand dollars.”
The instruction is criticised because “although it confines the jury to the statutory limits, it does not tell them to exercise their discretion in. arriving at the amount of their verdict between the limits.” But the instruction was right in its general scope. The verdict, if for the plaintiff, may be for an amount within the limits mentioned. That is all the instruction said. To that extent it was correct. It failed to direct the jury how they should arrive at such amount, viz.: in the exercise of a sound discretion, giving consideration to the extent of the injury so as to give effect to the remedial side of the statute and to the facts of the negligence so as to give effect to the penal side of the statute. [Boyd v. Railroad, 236 Mo. 54, 93, 139 S. W. 561.] But such failure amounted to nothing more than mere nondirection for which the trial court cannot be convicted of error, the defendant having offered nothing to supply the omissions. [Browning v. Railroad, 124 Mo. 55, 27 S. W. 644; Smith v. Fordyce, 190 Mo. 1, 88 S. W. 679.]
The judgment is affirmed.