Anderson v. Davis , 215 Mo. App. 318 ( 1923 )

I cannot agree with my brethern that a case for the jury was not made under the humanitarian rule. I agree with the statement in the majority opinion that a plaintiff cannot rely upon testimony produced by the defendant to make his case when such testimony contradicts the allegations of his petition and his own testimony as was the case in Behen v. Transit Co., 186 Mo. 441, 85 S.W. 346, and Graefe v. Transit Co., 224 Mo. 264, 123 S.W. 835, cited by my associates. It may be noted here that those cases also recognize the generally accepted rule that a plaintiff's case may be made out or aided by evidence produced by the defendant and also that a jury may believe a part of the testimony of a witness and disbelieve another part. The case of Steele v. Railroad,265 Mo. 97, 175 S.W. 177, as I read it, turned on the fact that plaintiff had so contradicted himself in his own testimony by testifying to one state of facts on one day and to another state of facts the next day, both of which could not be true, that the court held, as a matter of law, that his testimony had no probative force and with his testimony eliminated no case was made. See pages 117 and 118. In the case of Tannehill v. Railroad, 279 Mo. 158, 213 S.W. 818, there was no evidence to show at what point the engineer should have discovered that the automobile would not stop, which clearly distinguishes that case from this one, for here the fireman testified directly that he discovered that plaintiff would not stop when he was seventy-five to one hundred feet from the track.

The majority opinion in this case reasons from the testimony of each witness separately and concludes that no witness, alone, makes a case under the humanitarian rule and that we cannot say that on the whole testimony a case is made because if we try to put together the testimony of plaintiff and that of either Mr. Friend or the fireman there will be such a conflict that no case is made. In that I think they take away from the jury one prerogative that all courts allows, which is, that the jury, and not the court, are the triers of the facts and must weigh the testimony of each witness. I think the majority opinion, in effect, denies the right of the jury to believe part and disbelieve part of the testimony of a witness. It is said that if we take as true plaintiff's testimony as to the speed and conduct of the automobile, then those in charge of the engine would have the right to infer that the driver of the automobile saw the engine and intended to stop and they would not be impressed differently until the automobile began to increase its speed and that the collision could not have been averted after that time. I think this latter conclusion erroneous. If the court should hold plaintiff to his testimony that his speed was three to four miles per hour when he was fifteen feet from the track and began to increase his speed, then we must allow the jury to hold the defendant to the same fact. Now if we keep in mind that plaintiff also testified that from that point it was a little up grade to the track and that he did not increase his speed much, and also that he testified that from his place in the seat of the automobile to the front of the machine was six or eight feet, which would make the length of the machine at least twelve to fifteen feet, and we then allow four feet for the width of the track, and keep in mind that the automobile got across the track and only lacked one foot of getting out of the way of the engine, it will appear that the automobile traveled at least thirty-two feet after the fireman, who was the only person on the engine that could see the automobile, was required by the appearance of the movements of the automobile to take notice that the automobile did not intend to stop. If the train was running twenty-five miles per hour as the evidence shows, then while the automobile was running thirty-two feet at the rate of five miles per hour the train would run 160 feet. If the jury found these facts to be true, as well they might, then a case sufficient to go to the jury was made under the humanitarian rule without the testimony of either Mr. Friend or the fireman. The engineer testified that he was seventy-five to 100 feet from the crossing when the fireman notified him to stop. That as it was he slackened some before hitting the car. Now if the fireman had not testified at all and the jury had found that he discovered that plaintiff was not going to stop when he was fifteen feet from the track, and had also found, as well they might, that the train was at that time 160 feet from the crossing, they would also have been warranted in finding that the fireman allowed the engineer to pass sixty feet nearer the crossing after he discovered plaintiff's peril before he notified the engineer to stop while if he had given the signal promptly when he first discovered plaintiff's peril the speed of the engine could and would have been slackened sufficiently to have allowed the automobile to escape and the collision would not have occurred. I do not think, however, that any witness, whether a party to the suit or not, should be held to exact figures when testifying to the speed of an automobile at a given time. Testimony of that kind is necessarily a matter of opinion. The plaintiff may have placed his speed too low and the other witnesses may have placed it too high. Mr. Friend may very easily have been mistaken in his estimate of the speed of the automobile as it passed from the right of way fence to the track because he was viewing it from the rear at a distance of 100 to 150 feet. He was in a much better position to judge of the distance from the train to the crossing when the plaintiff was at the right of way fence than to judge of the speed of the automobile. He testified that when plaintiff was about at the fence the train was between 200 and 300 feet from the crossing. If we take that as approximately correct then the average speed of the automobile from the fence to the track would be six miles or less per hour. I do not regard this a material contradiction of plaintiff or as a contradiction at all, for both were giving an opinion on a matter about which neither could be exact.

The fireman testified that he concluded that plaintiff did not intend to stop when he was seventy-five to 100 feet east of the crossing. To my mind that destroys the inference reached in the majority opinion that the fireman, for he was the only person on the engine that could see the automobile, did not know that plaintiff did not intend to stop until he was in fifteen feet of the track. I see no reason why the jury might not have found from the testimony of Mr. Friend and the fireman that the fireman knew when the plaintiff was at the right of way fence fifty feet from the track that he did not intend to stop and that the engine was then at least 200 feet from the crossing. If the jury did believe that state of facts then there can be no question that a case for the jury was made under the humanitarian rule for the engineer testified that the engine was in seventy-five to 100 feet of the crossing when he received the notice from the fireman to stop and if that were true, then the fireman allowed him to move 100 feet after he knew plaintiff did not intend to stop before he gave the engineer notice to stop. If the fireman had given the notice to stop when the engine was anywhere between 100 and 200 feet from the crossing, there can be no question but that the collision would have been avoided.

Mr. Friend and the fireman, both witnesses for the defendant, do not agree except as to the testimony that the plaintiff was going fifteen to twenty miles per hour and did not slacken his speed, but shall we say for that reason that the jury could not believe anything that either said? I understand a correct statement of the rule sought to be applied in this case to be, that plaintiff cannot be allowed to rely upon testimony produced by the defendant to make a case for him when to do so will necessarily falsify his own testimony. That is what I understand was held in the case of Behen v. Transit Co., supra, and which has been consistently followed since. As I view the testimony in this case the plaintiff may profit by the testimony of both Mr. Friend and the fireman without violating that rule. I think the plaintiff could profit by part of the testimony of the witnesses for the defense without being required to take as true the entire testimony of the same witnesses. I think the jury could have found from the testimony of the fireman that he discovered that plaintiff did not intend to stop when he was at or east of the right of way fence without being required to find that the same witness was correct in his judgment that plaintiff was then traveling fifteen to twenty miles per hour, or that the engine was then within 100 feet of the crossing. I also think that the jury could have found from the testimony of Mr. Friend that when plaintiff was at the right of way fence, fifty feet from the crossing, the engine was at least 200 feet from the crossing without being also compelled to find that plaintiff did not slacken his speed after he passed Mr. Friend in the road 250 to 300 feet east of the crossing. I also think that these facts could have been found without also finding that plaintiff's testimony as to the speed of his automobile was false. As already said, testimony as to the speed of the automobile is only a matter of opinion. If Mr. Friend is right in placing plaintiff at the fence fifty feet from the track when the engine was at least 200 feet from the crossing, then plaintiff's average speed from the fence to the track was about six miles per hour. I cannot see that this makes such a striking contradiction as will justify a court in holding that plaintiff cannot profit by Mr. Friend's testimony because to permit him to do so is to concede that his own testimony is false.

As I understand the majority opinion it holds that plaintiff cannot take any of the testimony of the fireman to aid his case without taking it all. I think this holding erroneous and in direct conflict with the rule that the jury may believe part of the testimony of a witness and disbelieve another part. This rule is recognized in the cases cited by the majority and is well stated in Campbell v. St. Louis Sub. Ry. Co., 175 Mo. 161, l.c. 180, 75 S.W. 86. It is there said "The motorman testified that the headlight was burning and that it threw the stream of light down the track on which he was moving and enabled him to see the wagon on the north track. He also said that as soon as he saw the wagon he thew on the brake and reversed the motor but that it failed to take effect. If that testimony is true, then he was not guilty of violating the ordinance for he did all that he could do in the emergency. But the jury were the judges of the weight to be given his testimony; if they credited part of his testimonyand discredited part, they were acting within their province. (The italics are mine.) So say I in this case. If the jury credited that part of the fireman's testimony in which he said that he discovered that plaintiff did not intend to stop when he was seventy-five to 100 feet east of the track and discredited his testimony to the effect that the engine was then within 100 feet of the crossing, and should also believe that Mr. Friend was correct in locating the engine at least 200 feet from the crossing when the automobile was at the right of way fence fifty feet from the crossing, they were acting within their province.

I am of the opinion that the majority opinion in this case on the question of the application of the humanitarian doctrine violated the rule that a jury may believe a part of the testimony of a witness and disbelieve another part and is in conflict with the decision of the Supreme Court in the case of Campbell v. St. Louis Sub. Ry. Co., 175 Mo. 161, 75 S.W. 86, and for that reason I ask that this case be certified to the Supreme Court for final determination.