249 Mo. 182 | Mo. | 1913
Plaintiff, -widow of Niels A. Lorenzen timely sned in the circuit court of St. Louis for statutory damages for Ms wrongful death at the hands of defendant. Verdict for defendant. New trial ordered and granted on plaintiff’s motion. Defendant appeals from that order. Such strokes earmark the case.
The specifications of negligence are: . (1) a violation of the “Vigilant Watch Ordinance,” (2) the violation of an ordinance limiting the maximum speed of street cars in St. Louis at the place in hand to ten miles per hour- — both, it is alleged, having causal connection with Lorenzen’s death and both introduced in evidence. The Vigilant Watch Ordinance has been here often. It relates to the duty of employees in charge of a going street car in St. Louis to keep a vigilant watch for those approaching their tracks and to use diligence in stopping the car on the first appearance of danger to such persons. [White v. Railroad, 202 Mo. 1. c. 549.] Its terms are not material to any issue here; for the court instructed on that ordinance and the jury found for defendant on that issue. Moreover, plaintiff does not now contend the order granting a new trial can be sustained because of error in the way that issue was put to the jury. So that if we held, as we would be bounden to do, that the ratio decidendi on the motion was immaterial, if other good ground existed, it would not mend matters a whit.
The court granted‘a new trial for error in ruling out testimony on negligent speed. By that ruling plaintiff was left without proof of the rate of speed of the car killing her husband and her case breaking-down on that issue, it did not get to the jury. It is obvious, therefore, that if the court erred in excluding testimony on speed that error materially affected the merits, and, when later the trial court corrected that error by awarding a new trial, it did excellent justice. ' Contra, if the court did not err in excluding such tes
The shoe pinching at that precise point and nowhere else (under the briefs on both sides), the blunt and single question on this appeal is: Was there error in excluding testimony of eye witnesses on the speed of the car killing Niels A. Lorenzen? That question will he put in a form narrowing it very much presently when the actual ruling below is reached.
A word more on the record, before coming to the turning question:
Lorenzen was a teamster plying his calling at the time by driving a loaded coal wagon south on Broadway in St. Louis at dusk on November 12, 1907. South of (and approaching) him was one of defendant’s street cars propelled by electricity, in charge of defendant’s employees, running on defendant’s track and about defendant’s business of carrying passengers for hire. We take it the point of the accident was well lighted by street lamps, that Lorenzen could see the street car (and that those manning it could see him) for a block away — there being no turn in the street or obstructions. Defendant had two tracks on Broadway and Lorenzen was driving outside of both. O’Fal-lon intersects Broadway. At that intersection Loren-zen turned to cross defendant’s- tracks, on a line making an acute angle with the rails, to go down 0 ’Fallon. He had got so far that his wagon was one-half over the track' the car was on when it was struck about the middle by the oncoming car and he was thrown off and instantly killed, the car stopping in a few feet. There is testimony that the car was about sixty-five to seventy-five feet away when the team got on the track.
The facts and circumstances indicating that the car’s rate of speed bore a causal connection to his
I. At the threshold lies this guiding and general proposition to quicken us, namely:
The case calls for no new exposition of that doctrine; for in Stotler v. Railroad, 200 Mo. l. c. 123, et seq., the question is considered at length In Banc and unanimously ruled. (Q. v.) The authorities are there reviewed and the writer can add nothing more to what is there said. A later case, Mccreery v. Railroad, 221 Mo. l. c. 27, may be taken as authority for denying probative force to a mere “guess” on the part of a witness, but there is no note of discord in principle between the Stotler and McOreery cases.
The actual question, then, shifts or narrows itself to this:
May a witness, otherwise qualified to give a speed opinion, testify to that opinion when he did not form it instantaneously with the event itself, but after-wards ?
(Note: On the theory of the rhyming adage, A little — to-wit, a very little — nonsense now and then, etc., I recall the facetious and rather sly definition of “mind” and “matter” laid at the door of a celebrated metaphysician, viz.: What is mind? No matter. What is matter? Never mind. It serves to somewhat earmark the elusiveness and obscurity inherent in the subject.)
So much, by mere way of warning.
(2) Apply that same illustration to quantity or number. Mary, the maid, is asked by her mistress, Mrs. Wilkins Micawber, a week after the event, how many eggs and how much butter she borrowed from the neighbors across the way. The number and quantity had not interested Mary before, yet may she not give a fairly correct estimate on reconstructing the facts in her, mind, viz., that she used both in making five cakes by the Micawber family recipe for use at at dinner given by Wilkins Micawber to Heep, Copperfield et al.?
(3) It becomes material to know, subsequent to the event, the distance between A and B. Henry having formed no opinion at the time of the occurrence, may he not on a review in his mind of all the incidents give an estimate of the distance worth while?
Nay, is not an opinion (say, of the speed of a car at the time it killed a man) which is formed after the event in a moment of calmness of more substance than one formed instantaneously in a moment of intense excitement or when the mind was off guard and taken by surprise?
Conceding that impressions may be formed spontaneously (and simultaneously with the event) yet are all impressions formed that way? May not some good ones be the product of meditation, of deduction, of a review of known facts and recalled details ?
We see no good reason why, subject to the supreme test of cross-examination on the sources of his opinion, a witness may not give an opinion on the speed
Accordingly the circuit court committed no error in granting a new trial in this case.
Appellant cites a case from Nebraska (Mathieson v. Railroad, 97 N. W. 243) which, on first blush, seems to run a little counter to the views expressed. But critically analyzed,'in view of the testimony there dealt with, we deem the case not an authority in support of ’the first ruling of the trial court in this case. The reasoning of a court and propositions ruled must be read in the dry light of the facts of the case and the issues on trial. [State ex rel. v. St. Louis, 241 Mo. l. c. 238, et seq.]
But, aside from that view, the point is disallowed to appellant because this record does indicate what the testimony of O’Loughlin would he. In his voir dire preliminary to the question finally ruled out, it is shown that his opinion would he the car was running from fifteen to sixteen miles per hour. Not Only does that appear, but something more appears, viz., the whole trend of his examination, together with the ruling of the court and the objections of counsel, proceeded on the theory on all sides that his testimony would show a violation of the speed ordinance. Haying secured the exclusion of the testimony on that theory, it is too late to now insist that the record does nof show the excluded'testimony to he material.
On the whole record, the premises considered, the order granting a new trial should be affirmed and the cause .remanded to be proceeded with on the new trial awarded below. It is so ordered.