| Mo. | Jun 30, 1900
This case has been here before (140 Mo. 89" court="Mo." date_filed="1897-06-08" href="https://app.midpage.ai/document/graney-v-st-louis-iron-mountain--southern-railway-co-8012530?utm_source=webapp" opinion_id="8012530">140 Mo. 89), and is known among the members of the bar of this State, as the “suction case.” It is an action for $5,000 damages for the death of James Graney, the minor son of plaintiffs, alleged to have been caused by his being “drawn or sucked into and under defendant’s train by the force and velocity of said train which was moving at a reckless rate of speed,” etc.
The petition charges that, on the eighteenth day of January, 1891, there were in force three valid ordinances in the city of St. Louis: One prohibiting any car or cars, or
“On the eighteenth day of January, 1891, while said plaintiffs’minor son, James Graney, was standing in and upon the crossing of said Dorcas street, alongside of the track of the said railway operated by the said defendant, and at a sufficient and proper distance away from the said track,- and away from the locomotive and cars operated by the said defendant and while exercising due and proper care, and relying upon the duty of the said defendant to operate its locomotive and cars according to said ordinances, at a rate of speed not in excess of the rate provided for in the said ordinances, he was by reason of the reckless and dangerous speed of the locomotive and train of cars operated by the said defendant, its agents and servants, suddenly and without any warning given to him by the ringing of the bell of the said locomotive or by the operation of the said cars, in accordance with the ordinances, drawn or sucked into and under said train by the force and velocity of said train which was moving at a reckless rate of speed and in violation of the said ordinances of said city, to-wit, at a rate of speed of twenty miles per hour, which speed and velocity caused a vacuum to form, into which the said James Graney fell and was sucked under the wheels of the cars attached to the locomotive and train of the said defendant, and the cars passed over the body of the said James Graney, so that he was injured, wounded and bruised, and suffered great pain and anguish, and then and there sustained mortal injuries and, as the result of the said injuries so received by him, on the nineteenth day of January, 1891, died from the result of said injuries.”
On the trial the ordinances were read in evidence.
It is admitted that James Graney was killed on January 18,1891, by being run over by a train of freight cars operated by defendant, and that he was the minor son of plaintiffs.
It is also admitted that, on the date mentioned, defendant controlled and operated a railroad, a-portion of which is located in the city of St. Louis. It had two tracks, running north and south, which crossed Dorcas street at right angles. This street runs east and west.
On Sunday afternoon, J anuary 18, 1891, J ames Graney, then eleven years and nine months old, and four other boys, to-wit, Peter Graney, Jr., Philip Breitweiser, John Ehret and Pat Harvey, went down Dorcas street from the west, intending to cross the railroad track and go down within half a block of the Mississippi river to a trestle used for the track from the Anheuser-Busch brewery, where hops were deposited after being used. When close to the crossing, a freight train of twenty-three cars, drawn by an engine, came to the crossing from the south on the east track, at the rate, it is said, of twenty miles an hour. James Graney stood between the two tracks, two or three feet from the west rail of the east track on which the train was passing. When about one-half or
The boy is said to have weighed sixty-three pounds, but there is not a particle of evidence on this subject, except an estimate of his weight by his mother, and by the undertaker. It was also in evidence that the boy lived but a little way from the railroad tracks, and was quite expert in, and in the habit of, hopping on and off the passing trains, and was a bright, active intelligent boy.
The testimony of the two experts will now in.brief be stated:
Prof. Erancis E. Nipher, a professor of physics in Washington University for over twenty-three years, after testifying to these facts, was questioned and gave the following answers:
“Q. In that department of science you have been in the habit of observing the movement of bodies through the air? A. Yes, sir.
“Q. State what has been your experience in observing the motion of railway trains through the air, and what experiments have you made in that direction? A. I have traveled about ten thousand miles, I presume, and during that time, have made experiments on the effect of the train on the air around it.
“Q. Is there any well-known law of science by which it is known that a body, such as a railroad train, affects the air as it passes through it? A. Yes, sir; there is. When the body moves through the air it drags the air along with it, and usually the air moves somewhat less rapidly than the body; the same is true of any other liquid.
“Q. Could you illustrate that by the revolving of any instrument ? A. I have examined it by instrumental means and experimenting, both from the ground as the train passed,*675 and also experimenting from tbe train. Experimenting from the ground as the train passes, only makes it possible for the experiment to last during a very few minutes, while the train is passing. The best information is gotten by experimenting from the inside of the train, as then the experiment can last as long as you please. If you measure the pressure due to the wind, by means of an experiment from the train window, the wind pressure is less near the train, and as you project the instrument further out, the wind pressure increases, and when you get the instrument reached out into the undisturbed air, or less disturbed, the wind pressure there corresponds to the motion of the train; it gives the same pressure as a wind of the train-speed would give, or nearly that; but the air nearest to the train is moving to a large extent with it, measuring from the train, that wind pressure is much less and that is the air which would give the greatest pressure if you were standing on the ground near the train, because that air is moving with the train.
“Q. What would you say with reference to an engine with twenty or twenty-three freight cars, as to the pressure of the air ? A. Such a train carries along a great deal of air with it, and any one can observe this fact by standing near enough to it.
“Q. Suppose it was running at the rate of twenty miles an hour, what would you say ? A. If the conditions were right, there would be a very appreciable effect. A person standing near the train would receive a blow from this air moving with the train, and that blow might be sufficient to topple him over and cause him to lose his footing.
“Q. Now, suppose a small boy, weighing about sixty-three to sixty-five pounds standing near a train running twenty-five miles an hour, what would you say would be the effect of the velocity of the air created by the train on that boy ? A. That might have the effect of throwing him over,*676 and there would be a further tendency to turn him around slightly — a tendency that would be sufficient to make him roll when he struck the ground.
“Q. Would that occur if the train was running at six miles an hour ? A. No, sir; it would not.
“Q. You have heard the testimony in this case of these young men, and of Mrs. Yogel, in reference to the accident, did you not? A. I did.
“Q. You heard the testimony in this case of the young men and of Mrs. Vogel, in regard to the manner in which the boy fell; I will ask you if such a fall as that were possible without the boy striking the train or the train striking the boy ? A. Yes, sir; I think it would be.”
Defendant saved exception to this last question and answer.
Prof. Calvin M. Woodward testified: “That he was professor of mathematics and mechanics in the Washington University, and director of the manual training school; had been teaching mechanics for thirty years in the university; had studied all the problems connected with motion and force, both force produced by motion, and motion produced by force, and had made a great many general experiments. The actions of forces of air are perfectly well understood by scientific men, the moving air always produces a pressure upon the surface of bodies that are at rest; the extent varies according to the velocity of the current of air. In the ease of wind produced by a train of cars, the velocity of such wind is greatest near the car and diminishes sideways; so that at a distance of several feet from the train the velocity of the wind produced by that train would be considerably less than at or near the train. A train of twenty cars running at the rate of twenty miles an hour, would produce a very strong wind along the sides of the train; it would produce a steady current along the sides, more than a very short one would. If a small boy, weighing from sixty-three
It is not asserted by plaintiffs that deceased was struck by the cars. On the contrary, it is averred that he was not struck, hut it is insisted that he was thrown to the ground and drawn under the cars by the force of the current of air caused by the speed at which the train was moving.
At the close of all the evidence, defendant’s counsel asked the court to give an instruction in the nature of a demurrer to the evidence which was refused.
The results of the trial were a verdict for defendant, and a motion for a new trial by plaintiffs, which motion was granted, and defendant appeals.
The trial court, as required by section 801, Eevised Statutes 1899, specified of record the grounds on which the new trial was granted. They were: The giving of the first and sixth instructions, at the instance of defendant, which are as follows:
“1. The jury are instructed that the deceased, James Graney, had no right to presume that the train was running at less speed than six miles per hour-, when, by looking, he could see that it was moving faster.
*678 “6. Tbe jury are also instructed that, although they may believe from the evidence that the speed of the train was as great as twenty miles an hour, and that such rate of speed was in excess of the rate of speed permitted by the ordinance of the city of St. Louis, and, although, as a result of such-excessive rate of speed, the minor son of the plaintiffs, standing at a reasonable distance and out of danger from the train, ordinarily, was drawn in by the suction of the train, and in consequence was injured so as to cause his death; yet, if such result was not one which a man of ordinary prudence and circumspection could reasonably anticipate as likely to o.ccur from such -a rate of speed, then plaintiffs are not entitled to recover in this case, and the verdict should be for the defendant.”
1. The section of the statute already referred to, first made its appearance in its present shape in the laws of 1887, p. 230. [See R. S. 1889, see. 2241.] Section 2246, Laws 1895, p. 91 (now section 806, R. S. 1899) is in pari materia with section 801 aforesaid, and they are to be construed together. The only effect, and the only intended effect of the statutes of the laws of 1891 and 1895 in allowing appeals from judgments less than final, is precisely the same as it was when an appeal lay alone from a final judgment. In such circumstances, just as formerly under the old practice, the only grounds on which this court will interfere are for errors (that is judicial errors) or. where there is no basis in the evidence on which a verdict for the plaintiff should be permitted to stand,, or where the verdict is plainly the result of passion or prejudice, etc.
This subject is elaborately discussed by Marshall, J., in Haven v. Railroad, 155 Mo. 216" court="Mo." date_filed="1900-03-14" href="https://app.midpage.ai/document/haven-v-missouri-railroad-8013508?utm_source=webapp" opinion_id="8013508">155 Mo. 216, and the conflicting decisions of this court on the point contrasted.
2. Looking then to the instructions under review, I do not find any error committed in the first one, because it is in
Possessing the knowledge that the boy did, and standing, as some of the witnesses state he did, within one or two feet of the track, he could not help seeing the train approaching, had he looked, and he must have known, just as his comrades did, that the train was running at a greater rate of speed than the ordinary rate, to-wit, six miles an hour, and knowing this, he (in the language of the objected-to instruction) “had no right to presume that the train was running at less speed than six miles an hour, when by looking, he could see that, it was running faster.”
3. The sixth instruction announces a principle often^ to be met with in the authorities, and occasionally announced by this court,, to-wit, that if an injury occurs from a cause which no man of ordinary prudence could reasonably anticipate, unless in exceptional circumstances, would have happened: that such instances are assigned to the domain of inevitable accident, concerning which, no one being'negligent, no one is responsible.
4. But in the view I take of the testimony in this case,
The principle announced in defendant’s sixth instruction, will be further discussed in discussing the testimony. The rule in regard to the admissibility of a professed expert is that the competency of the witness as an expert must be first affirmatively established, and the opinion of the witness as to his own qualifications is irrelevant and carries no weight with it; and he must have special skill in the subject concerning which his opinion is sought to be given. [Lawson on Expert, etc., Evid. (2 Ed.), pp. 277, 280, 231; Rogers on Expert Testimony (2 Ed.), p. 38, sec. 15, p. 40; sec. 1Y.]
In Carr v. Northern Liberties, 35 Pa. St. 324, it is said: “Matter of opinion is entitled to no weight with a court or jury unless it comes from persons who first give satisfactory evidence that they are possessed of such experience, skill or science in such matters, as entitles their opinions to pass for scientific truth.”
It has been said that “an expert, as the word imports, is one having had experience.” [Ardesco Oil Co. v. Gilson, 63 Pa. St. loc. cit. 151.] Elsewhere and otherwise expressed, the term implies, in the language of Dob, J\, in Jones v.
The first alleged expert says he had been professor of physics in Washington University for nearly twenty-four years; had travelled about 10,000 miles, he presumed, and during that time, made experiments on the effect of the train on the air around it, etc., etc. See his testimony heretofore quoted: That a train of twenty or twenty-three freight cars carries along a great deal of air with it, and any one can observe this fact by standing near enough to it; that the effect of a train running six miles an hour would not be appreciable ; but that such a train running twenty miles an hour, would have a very appreciable effect. If the conditions were right, there would be a very appreciable effect. A person standing near the train would receive a blow from this air moving with the train, and that blow might be sufficient to topple him over and cause him to lose his footing. That a small boy of about sixty-five pounds, standing near a train running twenty-five miles an hour, the velocity of the air from the train might have the effect of throwing him over, and there would be a further tendency to turn him- around slightly — a tendency that would be sufficient to make him roll when he struck the ground, and this would not be the case with a train running six miles an hour. There is nothing in this testimony to show that this witness had ever read in any scientific or other work stating, or had ever made any experiments, showing, that any live animal capable of offering resistance, to-wit, a dog or a cat or a guinea pig or squirrel or chicken, if standing within a foot or two feet of a train running twenty-five miles an hour which had partly passed by, fell and was sucked under the wheels of the cars as they passed. Nor does he say that in his peregrinations of 10,000 miles he had ever observed any such or any similar incident or occurrence.
In Mississippi the Supreme Court of that State, having before it the subject of the competency of experts to impeach the testimony of the mother in a prosecution for bastardy, by testifying that it was highly improbable that impregnation could result from the first act of coition, held such testimony incompetent as being too uncertain, indefinite and hypothetical, to form the ground-work of judicial action or investigation, saying: “The courts, in our opinion, have gone quite far enough in subjecting life, liberty and property of the citizens to the mere speculative opinions of men claiming to be experts in matters of science, whose confidence, in many cases bears a direct similitude and ratio to their ignorance. We are not disposed to extend this doctrine into the field of hypothetical conjecture and probability, and to give certainty as evidence, to that which, in its very nature, must be wholly uncertain and unsatisfactory; dependent on circumstances and conditions entirely secret, hidden and unknown, as facts. And without a knowledge of which, neither science nor experience, however great, could afford us the remotest information.” [Anonymous, 37 Miss. loc. cit. 59.]
And the last question propounded to witness to the effect if it were possible for the fall of the boy to occur as described by witnesses without the boy striking the train or the train striking the boy, and the answer thereto, was altogether improper. It was one of disputed facts in the case what
5. Eut it may be conceded that the testimony referred to in the just-completed paragraph was really testimony, and sustained the allegations of the petition as to the boy being sucked under the cars by the current of air put in motion by the forbidden speed of the train; still plaintiffs, having proved that, can not recover, because there is no evidence that' the principle on which plaintiffs’ petition is founded, was known to defendant, or if known, could have been provided against. No man is required to anticipate an accident that has never occurred before, or held negligent if he fails to do so. Were the rule otherwise, it would be a lasting and indelible reproach to law, justice, common reason and common sense. In the language of Mr. Wirt in a celebrated case: “Neither the human heart nor the human understanding will bear a perversion so monstrous and absurd, so shocking to the soul, so revolting to reason.”
Take a single illustration of so plain a proposition: A wholesale grocer of the metropolis of Missouri, sends his wagon down to the train loaded with sugar for some distant customer. Now, chemists are aware, so it is said, that sugar contains an ingredient which is the most powerful explosive known to chemistry. While the wagon is on its way to the train, that ingredient becomes aroused into “pernicious activity” with the result that the metrical tragedy of the boy on the burning deck is enacted in the crowded streets of St. Louis, and hundreds are slain. Will it be said that the grocer is responsible because he did not anticipate and provide against such an unheard of result? Or, that he ought to have consulted some learned college professor before engaging
Eor these reasons defendant’s demurrer to the evidence should have prevailed. Moreover, it should have prevailed for the further reason that the allegations in the petition that plaintiffs’ son was “drawn or sucked into and under said train by the force and velocity of said train .... which speed and velocity caused a vacuum to form, into which said James Graney fell and was sucked under the wheels of the cars,” etc., was not supported by testimony to the effect that the “wind turned him around and made him fall and he rolled under the cars.”
I am aware that these views are directly repugnant to what is called the “Euchs case,” 133 Mo. 168" court="Mo." date_filed="1896-03-03" href="https://app.midpage.ai/document/fuchs-v-st-louis-8012064?utm_source=webapp" opinion_id="8012064">133 Mo. 168; but that case has been repudiated, though not eo nomine, in Sullivan’s case, 133 Mo. 1" court="Mo." date_filed="1896-03-03" href="https://app.midpage.ai/document/sullivan-v-jefferson-avenue-railway-co-8012052?utm_source=webapp" opinion_id="8012052">133 Mo. 1, and in American Brewing Ass’n v. Talbot, 141 Mo. 674" court="Mo." date_filed="1897-11-09" href="https://app.midpage.ai/document/american-brewing-assn-v-talbot-8012681?utm_source=webapp" opinion_id="8012681">141 Mo. 674. See, also, authorities cited in minority opin
The Euchs case, decided by a divided court, should, therefore, no longer be followed, and the same is true of this case as first reported. For these reasons we reverse the judgment and remand the cause with directions to the lower court to enter judgment for defendant on the verdict.