139 Minn. 278 | Minn. | 1918
The appeal is from the order denying a new trial, there having been a verdict directed in favor of defendant.
The negligence alleged was the moving of the locomotive and cars without giving notice and warning thereof by sounding whistles or ringing the bell, or both, contrary to the general custom and rules. The evidence discloses that the usual practice was to give two warnings, one by calling out before the locomotive was started against the cars. The other was to ring the locomotive bell as soon as it began to move. As to the former it affirmatively appears that it was given so that the deceased unquestionably heard and understood that the cars on track 2 were about to be pulled. He had forked in this yard for a considerable time and well knew the practice. So that no negligence can possibly be predicated upon a failure to give the customary 'Oral warning.
The only other negligence attempted to be established was failure to ring the bell. A rule, as well as a custom, required the bell on the locomotive to be ringing when cars were being moved in this yard. Three witnesses testified positively that it was ringing. It was an automatic bell. No witness attempted to state as a fact, that it did not. The conclusion of one th'at it did not ring was properly stricken, because it clearly appeared that all he meant to convey was that he did not notice whether it did or not. He was inside a box car chiseling a hole in its floor, and of course occupied with his work and had no occasion to listen for danger signals. That was also the effect of the testimony of all the other witnesses of whom inquiry was made on that subject. Not one of them was listening to hear the bell ring, or was concerned about the matter. As said in Cotton v. Willmar & Sioux Falls Ry. Co. 99 Minn. 366, 109 N. W. 835, 8 L.R.A.(N.S.) 643, 116 Am. St. 422, 9 Ann. Cas. 935: “The testimony of a witness that he did not hear a bell rung is thus of itself, as against direct and positive testimony of another that the bell did ring, no evidence that it did not ring, but, taken in connection with evidence showing that the witness could and probably would have heard it, had it been rung, and that he was listening to hear it ring, is evidence that it did not ring.” Under this rule, carefully stated in the opinion and fortified by authority, we agree with the learned trial court that there is not sufficient probative force in this so-called negative testimony, even if coupled VÍth a presumption that the deceased in the exercise of due
The impeachment of the witness Lee, who testified that he heard it ring, is of so doubtful a character as not to be of any weight. It is so easy to misunderstand one another in these interviews between one who has witnessed an accident and the attorney or claim agent of an interested party. This also applies to the impeachment of certain other witnesses. What little weight might attach thereto should not be permitted to do away with a fact established by direct positive evidence of unimpeached witnesses.
There is nothing in the point that there was a failure of the men to observe the custom of warning each other of danger and because of such failure Plaehetko was injured, for there was no evidence that any one saw him start to go between the cars, or knew that he intended to cross until too late to prevent the accident.
One of the assistant foremen, who called out the warning to the men, incidentally testified to the fact that he passed over between cars further away from the locomotive' just about the time Plaehetko, was caught. After a long cross-examination in ’which the witness stated that he did not hear the bell; that he was then giving that matter no attention; that he knew what he was doing when he ran across the track, he was asked the further question: “Well, if you took the risk of going in between' there within 9 car lengths of the engine, don’t you think you were pretty sure that you had not heard the bell, or you never would have gone through there?” The objection that the question was argumentative and the matter gone over was sustained. We think both grounds of the objection proper.
We discover no reversible ruling, nor any evidence which might charge defendant -with negligence causing the distressing death of plaintiffs intestate. ,
Order affirmed.