Batsch v. United Railways Co.

122 S.W. 371, 143 Mo. App. 58, 1909 Mo. App. LEXIS 300

Opinion

GOODE, J.

(after stating the facts).- — We overrule the assignment of error relating to the supposed incompetency of the two witnesses Carter and Hurley to testify as experts regarding the distance in which the car could have been stopped. Those men had had many years’ experience as motormen in operating electric cars, though- it is true Carter never had operated one which was equipped with an air-brake. Hurley had had eight months’ experience with that kind of a car. The testimony shows without dispute a car with an air brake could be stopped in a shorter time and space than one equipped with a hand-brake. Both men testified as to the distance in which the car could have been stopped if equipped with a hand-brake, and also as to the time in which it could have been stopped with an air-brake. Though Carter had not operated cars of the latter kind, his long experience with hand-brake cars and his subsequent observation of those equipped with air-brakes, we think qualified him to testify as an expert. Hurley’s qualifications were beyond question.

We overrule, too, the exception to the hypothetical question propounded to these experts, or at least to one of them. This question is said not to have included all the essential facts, but we think it did. The car in question was thoroughly described, and the testimony shoAvs it did not materially 'differ from other cars which had been in general use in the city and operated and observed by the witnesses. The essential facts were covered by the question, and that was enough. [Gourley v. Railroad, 35 Mo. App. 1. c. 92.]

It is contended the court should have instructed against a recovery for lack of vigilant watch by the motorman because there was no evidence to show he was not keeping vigilant watch. This position is untenable. There was much evidence that the perilous position of plaintiff and his property was visible to the motorman from three to six hundred feet away, if he was watching. If witnesses for plaintiff are to be believed, the motorman made no effort to check the speed of the car, and the jury might infer this was due to negligence in failing to look ahead as he should have done, and hence failing to see plaintiff’s danger, or else to take proper precautions to stop the car after he saw the danger. The latter would be the less charitable view and the other was warranted by the evidence. The court did right to submit both grounds of recovery for there was evidence to prove both.

We do not perceive the force of the assignment of error because of the refusal to instruct against a recovery unless the jury believed the car was at Fair avenue when the horse got on the track and in a situation of danger. The essential point was not whether the car was as far east as Fair avenue when plaintiff’s peril became visible, but whether it was far enough away for the motorman to stop by the use of ordinary care in time to avoid a collision.

As the judgment in the case must be reversed for another error, we will not take up the question of whether the main instruction for plaintiff was erroneous in directing a verdict in his favor if the jury found defendant’s negligence directly contributed to cause the accident, instead of requiring them to find said negligence caused the accident. No doubt the charge would be erroneous if the defense of contributory negligence had been set up and supported by testimony. [Hof v. Transit Co., 213 Mo. 445, 111 S. W. 1166.] But as no such defense was in the case, we are not sure that decision of the Supreme Court is in point.

Mrs. Knickmeyer had given a statement regarding the accident to a man named Kavanaugh, September 25, 1907, some three months after it occurred. We suppose Kavanaugh was an employee of defendant. In this statement she said that on June 22, 1907, at about eleven o’clock in the forenoon, she was cleaning windows at her home on Lee avenue, standing on the ground in front of her house; that she saw plaintiff’s candy wagon passing along on the track to the east, watched his horse to see how he would act, as she had seen other horses “cut up” as they passed the steam roller; that when plaintiff’s horse came to the roller it was puffing and making a noise, and “when the horse came up to it, he became, frightened and suddenly swung over onto the west-bound track directly in front of a car which was coming west and which was not over fifteen feet east of where the horse swung over; the car struck the horse, knocked it over to the east-bound track and the horse was lying about the rear end of it when it stopped.” She said further she heard no gong rung and the car was running at a pretty good rate of speed. This' statement was signed by her under the name of Maud Fleshman, her maiden name. On the witness stand at the trial this witness testified, among other things, about the roller in the street, and that when she first noticed plaintiff and his wagon she was in the front yard cleaning windows; that she yelled to a friend there was going to be an accident, she was sure; the next thing she saw Mr. Batsch fell into the street and strike his head on a manhole. She then testified as follows: “Q. When the horse began to prance, how far away was the car? A. It was near Fair avenue.” Now Fair avenue, according to the witnesses, was three hundred feet, or more, away, and this testimony of the witness on the stand was in conflict with her written statement that when the horse turned on the north track the car was only fifteen feet away; at least it appears to have been, and the jury might find it was. On cross-examination she was asked if Kavanaugh interviewed her about the accident on September 27, 1907, and said he did; that she told him all about it in the presence of her mother and thought he wrote down what she said; that at least he wrote down on a paper things she said about the accident. Thereupon her written statement was handed to her and she was asked to examine it and see if it was the paper she had signed. She read the paper and answered that it was her statement with her signature at the bottom in her own handwriting, and her mother was present when she made the statement. The document was afterwards offered in evidence by defendant’s counsel as an impeaching one, and plaintiff’s counsel objected to its reception on the ground that no proper foundation for its introduction had been laid. The court sustained this objection and defendant excepted. This ruling was clear error. We have been cited by plaintiff’s counsel to no authority which would support it, all that is said being that the written statement was not part of the res gestae and hence inadmissible on said score, and no foundation was laid for its reception to impeach the witness. It was not offered as part of the res gestótebut as a statement made by the witness out of court which contradicted what she testified on the stand; and that, too, on the most material issue of the case. It is insisted she should have been interrogated by defendant’s counsel as to whether she made certain of the statements contained in the document; particularly whether she said the horse swung over on the track directly in front of the car when it was not more than fifteen feet away. If the attempt to> impeach her had been by contradictory oral statements out of court, this position would be well taken; but it is untenable as the attempt was to impeach her by a writing <ehe unqualifiedly admitted having signed as her narrative of the facts of the occurrence. Mr. Greenleaf says a sufficient foundation is. laid for the admission of an impeaching writing signed by a witness by the acknowl edgment of the witness that it is his writing. [1 Green-leaf, Evidence (Lewis Ed.), sec. 465.] In State v. Stein, 79 Mo. 330, it was sought to impeach a witness by a letter. During cross-examination of the witness, the letter was handed to him, and he was ashed if he wrote it, to which he gave an affirmative reply. After the witness left the stand, counsel offered to read the letter; it was objected to and the court excluded it on the ground the witness ought first to have been examined as to its contents. The Supreme Court held this ruling was erroneous and proceeded on the theory only applicable to verbal statements offered to impeach a witness; that when the impeaching evidence is a writing made by the witness, the writing must first be shown to him as the foundation for its introduction, and if he admits he wrote it, the writing must then speak for itself; citing Greenleaf, supra. In State v. Gonce, 87 Mo. 629, testimony given by the defendant was impeached by an affidavit for continuance he had made. He was not interrogated regarding the contents of the affidavit, but it was shown to him and he admitted the signature was his. This was held to be a sufficient foundation for the reception of the writing.

There was evidence to prove plaintiff would suffer in the future from his hurts, and so the court rightly instructed regarding future suffering.

The judgment is reversed and the cause remanded.

All concur.