89 Mo. App. 100 | Mo. Ct. App. | 1901
This is an action to recover the value of two steers alleged to have been killed on a public crossing. The suit was brought in the justice court, taken by appeal to
The defendant claims there was- no evidence to sustain the allegations of the statement that the defendant’s agents failed to ring the bell or sound the whistle as the train approached the crossing; or, that the animals were killed while on the crossing. As to whether the statutory signal was given as the train approached the crossing, must be determined almost exclusively by the evidence of Mrs. Horn. The crossing, where it is alleged that the steers were killed, is about one-fourth of a mile west of Ellis, a station on defendant’s road. The date of the occurrence was the seventeenth of April, 1899. Mrs. Horn testified that she lived west of Ellis about one-fourth of a mile; was at home on the night of the seventeenth of April, 1899, and while in bed, she was looking out at the cará as they passed; that the house was not far from the crossing, and that the window was up. She first heard the train when it got to Ellis about one-fourth of a mile away. She says she was looking at the train before it reached the crossing, and that she did not hear any bell ring, or whistle sounded as the train approached.
On cross-examination, these questions were asked her: “Question — You say you didn’t hear any bell sound? Answer — No, sir. Question — You simply didn’t notice whether the bell rang or the whistle sounded ? Answer — I never heard it. Question — You don’t mean to say it was not sounded? Answer — I never heard it. Question — You don’t mean to say it was not sounded, positively, but simply you didn’t notice it ? Answer — Looks like I would have heard. Question — Didn’t you say in this written statement: Uf any whistle or bell rung I didn’t hear them; I don’t mean to deny the bell sounded, but I mean to say I didn’t hear them?’ Answer — I didn’t hear them. Question — You don’t know whether they sounded or not ? Answer — I never heard it. Question — That is all you
Appellant insists that the testimony of Mrs. Horn was purely negative in its character and comes within the rule of the case of Cathcart v. Railroad Co., 19 Mo. App. 113. In that case the evidence of the two witnesses, who were introduced by the plaintiff to prove that the bell was not rung and the whistle not sounded, had no probative force, and did not authorize a recovery. These witnesses were one quarter of a mile from the train. One of them testified: “I did not pay any particular attention to the bell. It might have rung. I did not hear it. I did not hear it ring, was not paying special attention to the bell.” The other stated: “The bell was not rung that I heard; think I could have heard it if it had been rung. I was southeast of the train, and the wind was from the northeast. I did not pay particular attention as to the bell. It might have been rung. I did not hear it.” Judge Phillips, who rendered the opinion of the court, reasoned thus: “This evidence is certainly most meager and unsatisfactory. It is essentially negative. The fact that a witness does not observe an object or sound, does not disprove its existence, without more. Such evidence, to be of any value or probative force, should be supplemented by the fact that the attention of the witness was directed to the object, or that from his positive habits of attention and observation, or the surroundings, a reasonable presumption would arise that the witness would have seen or heard. Against the-positive testimony of the fireman that the bell was rung, unless wholly discredited as unworthy of belief by a jury, such negative testimony should have no weight.”
The character of the testimony of Mrs. Horn is materially different from that of the two witnesses in the Cathcart case. She was in a position to know whether the bell was rung or the whistle sounded. She was in bed near the window of her bed
From what has been said the court properly overruled defendant’s demurrer to plaintiff’s case, and as there was no error in giving and refusing instructions, the cause will be affirmed.