Dudley v. Wabash Railroad

150 S.W. 737, 167 Mo. App. 647

• Court: Missouri Court of Appeals
• Decided: October 8, 1912
• Status: Published

Opinion

CAULFIELD, J.

(after stating the facts). — I. Defendant assigns as error the trial court’s refusal to direct a verdict for the defendant. Such refusal was proper unless defendant’s nonliability was affirmatively and conclusively established by the evidence. Where, as here, the evidence showed an injury at a public crossing by a train colliding with a person driving across the track, when the bell was not rung or the whistle sounded, a prima facie case was made, and the burden of proving nonliability was then shifted to the defendant. [Weigman v. Railroad, 223 Mo. 699, 123 S. W. 38.]

The only suggested basis for defendant’s claim of nonliability is, that plaintiff was negligent in going upon the track in front of the moving train when he saw or by the exercise of ordinary care could have seen the train in ample time to avoid going upon the track into danger. Did the evidence conclusively show this? There is no evidence that plaintiff actually saw the train or its headlight before his horses were upon the track and it was too late to get across or back up (the train struck before he could even reach his whip), except the statements attributed to plaintiff as having been made by him the night of the tragedy and the morning after. Defendant argues that plaintiff’s conduct in failing to deny or explain such statements amounts to an admission that he made them. We need not discuss that proposition. If he made them, it was the duty of the jury to give them just weight in settling the questions of fact involved in the cause, but they were by no means conclusive of the fact alleged to have been admitted by them. [Cafferatta 1. Cafferatta, 23 Mo. 235; Shepard v. Transit Co., 189 Mo. 362, 87 S. W. 1007.] Besides, none of the statements designated the point at which he first saw the train or its headlight, or amounted to an absolute admission that at that time he was in a place, of safety. An inference to the latter effect might possibly be gleaned from them to be measured against his positive testimony to the contrary at the trial, but such inference and comparison were matters for the jury and were properly submitted to them. We are also satisfied, without feeling the need of restating all the evidence and argumentatively tracing the steps leading to our conclusion, that not only is there no conclusive showing that the obstruction ceased in time to let plaintiff see and keep off the track, but there was a suffieient showing to justify an affirmative finding that the headlight did not come into view until the plaintiff’s horses were on the 'track, at which time the train was so near that plaintiff did not have time even to reach his buggy whip, to say nothing of getting off the track. The plaintiff and his daughter so testified, and the evidence of Maxey and his daughter tended to corroborate them in this respect. Plaintiff’s story was also supported by the testimony of Lute Diggs and Dr. Divan. Defendant’s counsel urges that though one could not see through the grass and weeds in the daytime, it did not follow that he could not see through them at night; that the headlight would shine through the weeds at night. It undoubtedly would if the weeds and grass were not too thick to exclude it, but that was a fact for defendant to prove to the jury. It is clear that it is not conclusively established. One witness, whose credibility was, of course, for the jury, testified on behalf of the defendant that one night he saw a headlight shining through the weeds and grass, but the testimony of plaintiff and his daughter tends to prove that they did not see any headlight through the grass and weeds, and the Maxeys, defendant’s witnesses, though testifying on this subject, did not say that they could so see it. Indeed, their testimony tends to prove the contrary. It is true they say they saw the light of the train reflected in the sky. Whether they testified truly was for the jury. We think the evidence of plaintiff and his daughter and of Erret Oliver tends to prove the contrary. But if Maxeys did see a reflection, a “blush” of light in the sky as they say, it does not necessarily follow that plaintiff saw it or was guilty of negligence, as matter of law, in not looking for it there.

Defendant also contends, however, in effect, that the noise and rumble of the train was sufficient to warn the plaintiff not to go on the track and that the failure to heed such warning was contributory negligence as matter of law. There was testimony, though by no means conclusive, from which it might be inferred that the train made a noise, other than giving the statutory signals; indeed it may be, as defendant suggests, that courts will take judicial notice that trains make a noise in running, and the jury might possibly have inferred that in the circumstances plaintiff was placed, he was guilty of contributory negligence in not hearing and heeding such noise. If, however, the court will take judicial notice that the train makes a noise, and on that mere fact, assumed without proof, convict plaintiff of contributory negligence or compel him to affirmatively exculpate himself, what becomes of the rule in these crossing cases that proof of failure to give the statutory signals and of the accident makes a prima facie case and shifts the burden of proving nonliability to the defendant? [Weigman v. Railroad, supra; McNulty v. Railroad, 203 Mo. 475, 101 S. W. 1082.] It is clear that it would be annihilated. As it was laid down by statute, as construed and upheld by our Supreme .Court,- it is not for us to destroy, but to-uphold and follow it. It follows, then, that it must appear, not only that the train made a noise (whether by proof or judicial notice is immaterial), but that the circumstances were not such as to prevent plaintiff from hearing it or to excuse his not heeding it, and the burden of proving such circumstances was on the defendant and the question was for the jury. There was no such conclusive showing here as would justify us in disturbing the finding of the jury in this respect; indeed, we are impressed that defendant was not relying at the trial on the defense of “other noises,” or, if so, but lightly.

Defendant urges, however, that “to move to a crossing at a rapid rate of speed where the view was obscured is negligence, and ordinary care requires that when one cannot see, he should stop to make more careful observation.” In the first place, plaintiff did not approach “rapidly,” but at a slow trot. Whether he knew that his view was being obstructed or thought he was looking into mere darkness, is a serious question, as to which the testimony does not enlighten us. This we know, that he was not familiar with his surroundings; and defendant’s witness Maxey testified that it was “very dark,” “awful dark.” We cannot presume under these circumstances that he saw or knew of the obstruction, or should have seen or known of it. The question whether he was negligent in that respect was for the jury and not for the court to decide under the circumstances.

It follows also, therefore, that the court properly refused to give defendant’s instruction No. 4, which declared it to be the duty of plaintiff to stop and look and listen if the embankment and vegetation would prevent his seeing the approaching train, without regard to whether he saw or knew of the obstruction or should have seen or known of it.

We may mention here that defendant urges that the evidence showed that plaintiff had made himself careless by “the use of whiskey.” It appears from the evidence that plaintiff had a bottle of whiskey in his pocket which was within two ounces of being full. The brakeman, witness for defendant, testified that when he went to where the plaintiff lay he picked up a coat, found a bottle of whiskey and “smelled the odor of whiskey there,” but did not “know whether on his clothes or on his breath.” Another witness for defendant testified that he saw plaintiff take a drink out of the bottle after the collision and that plaintiff “smelled like whiskey.” That plaintiff said to him, “They may say I am drunk” but “here’s all I have drank out of the bottle,” holding it up and asking the bystanders if they would have some. The livery man who testified for defendant said on cross-examination that when plaintiff called to get his team that night just before the collision, he seemed to be perfectly sober. It is sufficient to say that this is not by any means a conclusive showing that plaintiff had been made careless by drinking before the collision.

II. It is also urged, however, that the demurrer to the evidence should have been sustained for the alleged reason that there was no evidence in the case that plaintiff’s deceased daughter was single and unmarried and that she left no husband or minor child or children surviving her. If such facts were not conceded at the trial, it was necessary for plaintiff to establish them, and no presumption that the deceased had never been married is to be indulged merely because she was of tender years, she being over the age when she might lawfully contract marriage, viz.: twelve years. [Marshall v. Consolidated Jack Mines Co., 129 Mo. App. 649, 108 S. W. 573.] The marriage of a child of twelve and one-half years of age is so improbable, however, so contrary to common experience in this State, that slight evidence would be sufficient to establish the contrary; and such evidence need not be direct and positive, but may be shown by facts and circumstances. Moreover, if the fact that the child had never been married was conceded at the trial, though but tacitly, defendant will not be permitted to complain here that it wás not proven. Now, in the case at bar we have not only the tender age of the decedent to consider, but it was proven that she lived with her father, and the record abounds with references to her as Eunice Dudley (her father’s name), “the little girl,” “this little Dudley girl,” “the child,” “this Dudley child.” These terms of reference were not employed alone by the plaintiff’s counsel and witneses, but were resorted to by the defendant’s counsel and witnesses, as well. The answer which defendant filed referred to her as “Eunice Dudley,” and defendant’s counsel referred to her as “this Dudley child.” One of the instructions given on behalf of the defendant referred to her as plaintiff’s daughter, “Eunice Dudley.” On the other hand the witnesses and counsel uniformly address and speak of married women in the case by their proper title of “Mrs.” Thus it is shown that the decedent was of such tender years it is improbable she was married; that she lived with her father and bore his name, and was referred to by counsel and witnesses in terms usually applied to a little child, and totally inconsistent with the idea that she was a married woman. We consider that it was both proven and conceded on the trial that she had never been married.

III. It is conceded that the court erred “in allowing the witness, Pritchett, to state that he thought a person would have to get within five feet of the south rail to see up the track.” Pritchett, who was the postmaster at Martinsburg, having resided there fifteen years, living north of the crossing, and often passing oyer it, testified that the embankment right at the crossing was four or five feet higher than the railroad track, and about four feet higher than the wagon road; that the plank wing fence, four feet high, ran south from the cattle guard about twenty feet and up on top of the embankment; that as one traveled along the wagon road, he got on lower ground as he went towards the track, there being a decline of probably a foot there; that the embankment was about twenty feet from where one would be in the wagon road. Plaintiff’s counsel asked him whether he had “observed in passing over the crossing about how close you would be to the south rail before you could see up?” Defendant’s counsel objected on the ground that it called for a mere opinion or conclusion of the witness. The court ruled that he might answer the question if it was from “actual investigation.” Defendant excepted. Witness then answered: “A man would have to be within five feet of the crossing, of the south rail of the crossing, on account of the. growth growing on the right of way and on the side of the right of way, grass; there’s quite an amount of grass;” saying that he meant the slant of the embankment to the rail; that “there’s quite a lot of tufts of grass growing over the sides of the embankments.” The question so objected to and exception saved did not call for a “conclusion” as the objection assumed, but for a fact, viz.: whether ^plaintiff “ observed.” The responsive answer to this would have been a plain “yes” or “no,” and as the answer made was neither, it was not responsive to the question; but defendant did not move to strike out the auswér on that ground, hence cannot now complain of its unresponsiveness. However, we are satisfied that the question would have been proper even if it called for the answer which was given. The office of this answer was to show how nearly the obstructing embankment, fence and vegetation extended along the side of the right of way of the road up to the railroad track, and was not a mere conclusion or opinion of the kind the law condemns, [Kansas City, etc., R. R. Co. v. Weeks, 135 Ala. 614, 619; East Tenn., etc., R. R. Co. v. Watson, 90 Ala. 41 45; Chicago, etc., Ry. Co. v. Chambers, 68 Fed. 148, 154; Chicago City Ry. Co. v. Rohe, 118 Ill. App. 322, 324; Hoffman v. The Met. St. Ry. Co., 51 Mo. App. 273, 276; Parker v. Street Ry. Co., 69 Mo. App. 54, 61.] The objection was properly overruled.

On cross-examination defendant’s counsel elicited from the witness that “if the grass was growing there” one “would have to get up within five foot of the rail to see a train probably 300 feet;” that he never looked particularly to see a train; that he does not know how high a train is, “supposed to be ten or twelve feet.” “Q. If you never looked to see a train, how do you know you couldn’t see one? A. Simply because I would think a man would have to be that close to it to see up the track. Q. Tou mean to see along the track, the rail along the track? A. I mean to see up the track, yes, sir; if you can see the rail, you can see above it.” Mr. Robertson: “Now I move to strike out all this witness’s testimony on the ground it’s simply shown to be his conclusions and not based on any facts.” The motion was overruled and exception saved. Proceeding further the defendant’s counsel elicited from the witness that he did not know how high a box car or headlight is; that an engine and smokestack is probably higher than a car; that if a headlight was twelve feet high, a man standing back ■fifty feet from the crossing might see it; that he does not get on higher, but on lower, ground as he goes toward the track, because the ground is worn out there, there is a little, probably a foot, decline, going toward the track; the embankment is-at least five feet above the railroad and has a rail or plank fence on it four feet high, which would make about nine feet, and one sitting in a buggy would be within twenty feet of such obstruction; that the fence was not solid and the light would shine through its cracks if there was nothing to prevent, in the way of grass; that the eye of a man six feet tall standing down in the road would not be above tbe fence;' that the top of the ground on the embankment is at least four, feet higher than the road, back twenty-five feet. “Q. Now I will get you to state if you didn’t answer this question this way in the other trial; if Mr. Grant didn’t ask you this question, ‘Did you ever notice that embankment when there was vegetation growing on it?’ ‘I do not know anything about the vegetation, no, sir?’ A. That’s exactly the question he asked me in regard to the vegetation and I told him I didn’t know anything about it; didn’t know whether it was burned off or cut off; that’s exactly the answer I made him. Q. Well now, you say the vegetation would keep you from looking? A. I didn’t say it kept me from looking; I said in case vegetation was growing there you couldn’t see. Mr. Roberston: Then I ask the witness’s testimony be stricken out as not based on any fact or any observation. Mr. Gantt: I object to that for the reason the ground is exactly the same. Q. (By Mr. Gantt) That ground there, the lay of the ground of that cut and around the crossing, I will get you to state if it’s exactly the same now, or was the same when you observed it, as at the time of the'accident; that is the ground itself? A. Yes, sir, I know the ground is just the same as it was but I couldn’t tell you about the grass; I never observed it. The Court: The motion to strike out will be overruled. To which ruling of the court defendant then and there excepted and saved its exceptions. Mr. David H. Robertson: And I want to move to strike out his testimony for this reason: He testified he had to get in five feet of the track to see an engine, and then goes on to testify he never made any such experiment, and goes on further to testify he don’t know how high the engine is, or box car is, and manifestly he has no facts although the court allows him to draw a conclusion; the conclusion itself shows it’s based on no facts at all; to allow the witness to get up and state he couldn’t see a train, and don’t know how high a car is and never tried to make any such experiment at all; I think it’s a conclusion of the witness that shows it’s not based on any facts at all. The Court: The motion to strike out will be overruled. To which ruling of the court defendant then and there excepted and saved its ex-' ceptions.”

Now if the admissions which the witness made in his cross-examination had the effect of rendering part of his testimony incompetent, a proper motion should have been made, specifically pointing out the objectionable part and asking that it be stricken out. No such motion was made, but each motion was so broad and indefinite that to have sustained it as made would have had the effect of striking out all of the witness’s testimony. The motions that were made were properly overruled because, even though some of the witness’s testimony was incompetent, all of it was not. [See Ferguson v. Davidson, 147 Mo. 664, 672, 49 S. W. 859.]

IY. The point is made that the trial court erred in admitting in evidence a bundle of weeds and grass because “.they were shown not to be in the condition that they were when standing upon the ground.” It is not questioned but that they were properly identified as being part of the same weeds and’ grass which obstructed the plaintiff’s view, but it is urged that because it appeared that the weeds and grass had dried and were tied in bundles, they gave a false impression as to their condition while standing on the ground. The weeds and grass being sufficiently identified were properly admitted in evidence. [Connor v. Wabash Ry. Co., 149 Mo. App. 675, 129 S. W. 777.] Nor do we think that the circumstance that they had dried and were tied into bundles when shown to the jury was sufficient to render them inadmissible in evidence. The difference between their appearance when green and growing and the time when they were shown to the jury was carefully explained to the jury by testimony, and was a proper fact for the jury to consider in determining the weight that should be given to their appearance and the testimony of the witnesses in regard to them; but we are of the opinion that it did not destroy their probative value. [State v. Brannan, 206 Mo. 636, 105 S. W. 602.]

V. Defendant complains of the instruction on the measure of damages as follows:

“If under the evidence and the other instructions given in this case you decide to find a verdict for the plaintiff, then you may return a verdict in a sum, not less than two thousand dollars and not exceeding ten thousand dollars.”

The instruction is criticised because “although it confines the jury to the statutory limits, it does not tell them to exercise their discretion in. arriving at the amount of their verdict between the limits.” But the instruction was right in its general scope. The verdict, if for the plaintiff, may be for an amount within the limits mentioned. That is all the instruction said. To that extent it was correct. It failed to direct the jury how they should arrive at such amount, viz.: in the exercise of a sound discretion, giving consideration to the extent of the injury so as to give effect to the remedial side of the statute and to the facts of the negligence so as to give effect to the penal side of the statute. [Boyd v. Railroad, 236 Mo. 54, 93, 139 S. W. 561.] But such failure amounted to nothing more than mere nondirection for which the trial court cannot be convicted of error, the defendant having offered nothing to supply the omissions. [Browning v. Railroad, 124 Mo. 55, 27 S. W. 644; Smith v. Fordyce, 190 Mo. 1, 88 S. W. 679.]

The judgment is affirmed.

Reynolds, P. J., and" Norioni, J., concur.