Smith v. Wabash, St Louis & Pacific Railway Co.

Philips, P. J.

This is an action to recover damages for .the killing of two heifers, the property of the plaintiff. The material allegations of the petition are, that the cattle were killed by defendant’s locomotive, at a point where its railroad track crosses a public highway, and that defendant’s liability springs from the failure and neglect of its servants to ring the bell or sound the whistle eighty rods next before reaching said crossing.

Plaintiff recovered judgment, from which the defendant prosecutes this appeal.

I. The first question raised by appellant on the appeal is, that the evidence was not sufficient to warrant the verdict. A careful examination of the evidence satisfies us that it would have been error in the trial court to have taken the case-from the jury. There is no question made but that the cattle were killed by defendant’s locomotive at such public crossing. The only controversy is as to whether or not defendant rang the bell or sounded the whistle as required by statute.

Plaintiff’s evidence, by four witnesses, was that they did not hear any bell rung. They were all in such proximity as to have enabled them to hear the bell had it been ringing. One of these witnesses states positively that no bell was rung, and that he could have heard it had it been rung. They were looking at the train, and there was nothing to obstruct their sense of hearing. Such evidence does not come within the category of mere negative testimony.

*124 As to the sounding of the whistle, three witnesses for plaintiff out of four stated- that the whistle was not sounded inside of half a mile until the cars had about reached the crossing. Whether or not these witnesses were mistaken in their estimation of the distance at which the whistle was first sounded, was peculiarly a question of fact for the jury and not for the court. And although defendant’s engineer and fireman stated directly that they did give the required signals, the jury were still the sole judges of the weight of evidence and the credibility of the witnesses, there being evidence of an affirmative character on either side.

II. It is, however, insisted by appellant that, conceding the plaintiff’s proof tended to show that the required signals were not given, this did not make out a prima facie case without .more; but the burden rested on plaintiff to show by some other circumstance or fact that the injury resulted from the neglect to give such signals. We are not called upon, in this case, either to affirm or deny the correctness of the ruling made in Braxton v. Han. & St. Jo. R. R. Co. ( 77 Mo. 455 ), to the effect, that in order to fix a liability on the defendant, something more must appear in the evidence than the simple neglect to ring the bell or sound the whistle, as required by the statute. That decision was based on section 806, as it appears in the revision of 1879 of the Revised Statutes. But that section was amended in 1881. Sect. 1, p. 79, Laws Mo. 1881. By this amendment the plaintiff is relieved from the necessity of showing that the injury resulted “by reason of such neglect;” and he is only required to show, in the first instance, that Ms animal was killed by the railroad company’s cars, at the crossing of a public highway, and that defendant neglected to ring the bell or sound the whistle, as required by the statute. The amendment then reserves to the railroad company the right to show “ that the failure to ring such bell or sound such whistle was not the cause of such injury.”

*125 III. We do not deem it necessary to notice the objections made to the instructions given by the court other than as to the second, which is as follows:

“The jury are the sole judges of the credibility of the witnesses, and if they believe that any witness has sworn falsely to any material fact in the case, they are at liberty to disregard all of such witness’ evidence.”

The vice of this instruction consists in not employing the word “wilfully,” or “knowingly,” so that the jury would have been required to find that the witness had wilfully sworn falsely to any material fact at issue. Poulette v. Brown, 40 Mo. 52 ; Iron Mt. Bk., etc., v. Murdock et at., 62 Mo. 74 ; State v. Elkins, 63 Mo. 166 .

Under the instruction, as given, a jury might reject the whole testimony of a witness bearing upon a variety of material issues when he was honestly mistaken in his statement as to one fact. His evidence might be technically false in one particular, and yet the witness be honest in the statement, and truthful as to every other material matter. It is the guilty knowledge of misstating a fact, the wicked disposition, that impales his integrity, and exposes his entire testimony to discredit.

We are unable to discover the occasion or propriety of giving any declaration of law in this case applying the rule in question. The only witnesses introduced by the defendant were the engineer and fireman. The only material fact in dispute, to which they testified, was as to giving the required signals on approaching the crossing. Where then was the fitness or provocation of the assault upon integrity made by this instruction ? What other material fact was the reflection to apply to ? As to the single material fact in issue between plaintiff’s and defendant’s witnesses, the jury would have to pass on it, and the duty of the court would have been fully performed in advising the jury that in this conflict of evidence they were the sole judges of the credibility of the witnesses and the weight of the evidence. While,' *126 perhaps, it might, with exactness, be said that this instruction, under the circumstances, was a mere abstraction, and might have been perfectly harmless, yet it is as equally probable that the impression may have been conveyed by it to the minds of the jurors that the court entertained the thought that there was ground to suspect false swearing on the part of defendant’s witnesses. This is not an unreasonable deduction, when the legal presumption is, that the court only gives declarations of law based on the evidence. Judge Napton, in White v. Maxey ( 64 Mo. 559 ), very justly condemns the action of trial courts in giving such instruction when the state of the testimony does not warrant it. After admitting that the instruction, as to form, was proper enough, he adds, “but this court has never held that such an instruction should always be given under all circumstances. Such an instruction is always calculated to intimate that, in the opinion of the court_trying the case, •some of the witnesses had testified falsely.”

As the successful party had the benefit, if any, of the false statement of law contained in the instruction, he should suffer the consequences of any improper deduction it is reasonable to infer the jury may have made therefrom. *

For this error the judgment of the circuit court is reversed, and the cause remanded.

All concur.