160 Mo. App. 388 | Mo. Ct. App. | 1911
(after stating the facts).- — I. We are of the opinion that the evidence was sufficient to take the case to the jury on the question whether the engineer used ordinary care and caution in avoiding injury to Raby, after he saw, or by the exercise of ordinary care could have seen, him on the track. It is true that defendant introduced evidence very positive- in its character tending to prove that when the engineer first saw Raby the train was going faster
II. The defendant contends that the court erred in permitting an expert witness to testify on behalf of the plaintiff as to the distance in which a train running at thirty miles an hour could be stopped, asserting that there was no evidence upon which to base the question. It was just before leaving the curve that the engineer could first see Eaby, at which point the testimony tends to prove the train necessarily ran somewhat slower than on a straight track. It was on the straight track that Eaby was struck, some seven hundred feet after the engine left the curve. When it struck him, and just before that event, the evidence tends to prove it was running thirty to thirty-five miles an hour, and further tends to prove that its speed was not slackened or checked between the time the engine left the curve and the time it struck him. This tendency of the evidence was sufficient to serve as a basis for expert testimony as to the distance in which a train running at thirty miles an hour could be stopped, accompanied by evidence as to the distance in which a train running at thirty-five miles an hour could' be stopped.
The judgment is affirmed.