104 S.W. 620 | Ct. App. Ind. Terr. | 1907
(after stating the facts as above). Plaintiff in error has filed three specifications of error, as follows: “(1) The trial court erred in admitting testimony in the direct
In examining the testimony, the first witness for the defendant in error was Minnie Cox, who stated she was living within about 200 yards of the Missouri, Kansas & Texas right of wray fence. Between 10 and 11 o’clock she saw some cattle standing upon that road crossing, part on the railroad track and part on each side. She was just starting to the home of her sister. That it was about a half a quarter from her house to her sister’s house. “At about 10 minutes after I
J. W. Emery testified for plaintiff in error: “Been a locomotive fireman for seven years; fireman on the train that struck these cattle, on the public road crossing. I had just put in a fire after we got to the top of the hill, and then stepped to the gangwaj'- and looked out and saw the cattle about 300 feet ahead of the train. I hollered to the engineer to look out for the cattle, and at the same moment he applied the air and slowed down, so we were going about 15 or 20 miles per hour when we hit them. There is a dump at the crossing about 5 feet high, and it is upgrade slightly each way from the crossing. The whistle was blown and the bell rung when the cattle were discovered on the track. The bell was rung by air, and I think the whistle was sounded at the whistling post north of the crossing. The engine was about 300 feet from the cattle when the alarm was given. The first cattle I saw came on the track from the west." They came with a rush, and I could not see them until they got on the track.
In order for the plaintiff to recover, two facts must be established: First, that he has been damaged by the killing of his cattle; and, second, that it was done by the negligent act of the defendant, its officers, agents, or employes. In Stitt vs Huidekopers, 17 Wall. 384, on page 394 (21 L. Ed. 644), the court below said: “It is a rule of presumptions that ordinarily a witness who testifies to an affirmative is to be preferred to one who testifies to a negative, because he who testifies to a negative may have forgotten. It is possible to forget a thing that did happen. It is not possible to remember a thing that never existed.” And Justice Miller, delivering the opinion of the Supreme ICourt, said: “We are of opinion that the charge was a sound exposition of a recognized rule of evidence of frequent application, and that the reason of the rule, as stated in the charge, dispenses with the need of further comment on it here.” In Horn vs B. & O. R. Co., 54 Fed. 301, 4 C. C. A. 346 in which a controversy existed as to whether the whistle of a certain locomotive was sounded or not, some of the witnesses testified that it was sounded, and some that it was not, and the court said: “In the very nature of things, their affirmative testimony that the warning was given must be accepted as proof of that fact, notwithstanding an equal or greater number of witnesses failed to notice it, from whateever cause. There is in such cases no conflict of evidence as to the matter in question. The observation of the fact by some is entirely consistent with the failure
In this case the only evidence upon the part of the defendant in error is that the witnesses for the defendant in error did not hear the sounding of the whistle, though their attention was not directed to the matter at all until the whistle
We think therefore that the court below should have instructed a verdict for the defendant, and the case is reversed .and remanded. .