70 Mo. App. 634 | Mo. Ct. App. | 1897
This action was instituted before a justice of the peace in Barton county to collect a penalty of $20 provided for in section 2608, Revised Statutes, 1889, it being charged in the complaint that one of the defendant’s trains ran across a public traveled road without giving the statutory signals. The cause was first tried before the justice without a jury, resulting in
The points raised by defendant’s assignment of errors may be thus stated: First, it is contended that this is a criminal prosecution; and that because it is a criminal case, it is then insisted that there was no right of appeal from the judgment of the justice, and that the trial court should have required the plaintiff to make proof of the charge beyond a reasonable doubt. And, secondly, complaint is made of the court’s refusal to give certain instructions requested by defendant, and which relates to the comparative weight the jury should give to evidence of said defendant’s witnesses who attended the-train and that of plaintiff’s witnesses who were near the crossing when the train passed.
Being then a civil action it was only necessary to prove the facts by a mere preponderance of evidence; Chaney v. Ins. Co., 62 Mo. App. 45; Edwards v. Knapp, 97 Mo. 432, and numerous cases that might be cited.
The evident purpose of this instruction was to have the jury attach more weight to the testimony given by the two men operating the locomotive which passed over the crossing in question, than to the several other witnesses introduced by plaintiff — the first testifying in positive terms that the statutory signals were given while the latter as firmly denied that either the bell was rung or the whistle was sounded as the train approached the crossing. The testimony of these two trainmen is designated by defendant’s counsel as affirmative evidence, while that of the plaintiff’s witnesses is said to be of a negative character. By the instruction above quoted defendant seeks to apply the rule that affirmative testimony is stronger than negative. And while now the rule is general, and may ordinarily be well applied, it yet has its exceptions and
In Wharton on Evidence, volume 1, section 415, it is said, “that the weight to be attached to the negative witness depends upon the exhaustiveness of his observation; the mere fact of its negativeness does not exclude it as testimony. Put an intelligent and credible witness in a small chamber, open throughout to his scrutiny, and his testimony that in that chamber, at a given time, an event did not occur, which could not have occurred without his observation, is entitled to the same weight as that of a witness who, equally intelligent and credible, should swear to the occurrence of the event at the same time. A negative witness, also, whose attention is concentrated on a particular point, may outweigh an affirmative witness whose attention has not been so concentrated.”
Hence it is seen that it is not always correct to say that affirmative evidence, even when given by credible witnesses, is to be treated of greater weight and superior probative force than that of a negative character. This exception finds its application in the case at bar.
It would, then, we think, be entirely wrong to tell the jury that they should give greater weight to the evidence of defendant’s train men than to that of plaintiff’s witnesses. When it is remembered that the engineer and fireman pass daily and hourly over numerous of these crossings, it is readily seen that they were even more likely to be mistaken as to what was done at this particular point than these witnesses for plaintiff.
Other matters mentioned in the briefs have been examined but in none of them do we find cause to disturb the judgment. It is therefore affirmed.