Deiss v. Southern Pacific Co. , 56 Nev. 151 ( 1935 )

It is earnestly urged that the complaint in this action does not charge the defendants, or either of them, with actionable negligence, and hence that it does not state facts sufficient to constitute a cause of action. We desire to call the court's attention to two well-established rules dealing with the pleading of negligence: (1) Unless the failure to act, upon which a plaintiff bases his right to recover, is negligent per se, or unless said failure excludes any hypothesis other than that of negligence, a complaint which merely sets forth the said failure does not state a cause of action against a defendant. Silvera v. Iverson, 125 Cal. 266, 57 P. 996; South v. County of San Benito (Cal.), 180 P. 354; Simons v. P.G. E. Co. (Cal.), 220 P. 425; 19 Cal. Jur. 670. (2) In addition to pleading negligence upon the part of a defendant, a causal connection between the negligent act and the injury to plaintiff should be pleaded. Simons v. P.G. E. Co., supra; Fusselman v. Y.V.L. I. Co. (Mont.), 163 P. 473, at 476.

There is no evidence proving or tending to prove that defendant Thoni saw the deceased, and hence the "last clear chance" doctrine does not apply. The weight of authority is to the effect that actual perception is necessary to call into play the exception to the general rule as to contributory negligence and to fasten liability upon a defendant. Darling v. Pac. Elec. Co. (Cal.), 242 P. 703, at 706; Bagwill v. Pac. Elec. Ry. Co. (Cal.), 265 P. 517, at 519; McIntyre v. Northern Pac. Ry. Co. (Mont.), 180 P. 971, at 973; Met. Ry. Co. v. Fonville (Okla.),125 P. 1125, at 1127; Richardson v. Portland R.L. P. Co. (Ore.), 141 P. 749, at 750; A.T. S.F. Ry. Co. v. Taylor (C.C.A.), 196 Fed. 878, at 880; Penna. Ry. Co. v. Swartzel (C.C.A.), 17 F.2d 869; Central of Ga. Ry. Co. v. Bates (Ala.), 144 So. 10; Kansas City M. B.R. Co. et al. v. Williford (Tenn.), 88 S.W. 182; Mo. Pac. R. Co. v. Skipper (Ark.),298 S.W. 854; Baker v. Shafter (Tex.Com.App.), 231 S.W. 349; Nort. Tex. Traction Co. v. Singer (Tex.), 34 S.W.2d 923; Cleveland Ry. Co. v. Masterson (Ohio), 183 N.E. 875; Heldt v. Thompson (Ind.),157 N.E. 60; Panarese v. Union Ry. Co. (N.Y.), 185 N.E. 86; Carr v. Interurban Ry. Co. (Ia.), 171 N.W. 168; Emmons v. Southern Pac. Co., (Ore.), 191 P. 333. The most the evidence shows is that Thoni might have seen the deceased had he been looking, but upon such evidence the jury should not be permitted to infer or to speculate that he did so. Miller Brent Lumber Co. v. Douglas,167 Ala. 286, 52 So. 414; S. N.R. Co. v. Mann (Ky.),13 S.W.2d 257.

While there is in the record evidence as to the distance within which the train in question could have been stopped by a full emergency application of the brakes, there is a total lack of evidence as to the distance within which it could have been stopped if a prior service application of the brakes had been made as the train came into Winnemucca. And there is not a scintilla of evidence in the record as to the actual condition of the brakes on the train at the time it struck Deiss, and yet the court permitted the jury to speculate as to this and to assume that there had not been a service application. No evidence whatever was introduced on this point, and as far as the record is concerned the engineer may have made a service application with a reduction of as much as twenty pounds prior to the accident. We therefore respectfully submit that plaintiff failed to prove that the employees of the defendant company could have stopped the train in any shorter distance than it was in fact stopped, and that such failure is fatal to recovery under the last clear chance doctrine.

There is no proof that the negligence of defendants, if any, was the proximate or any cause of the death of Deiss. Viewing the facts in the light most favorable to plaintiff, the train could not have been stopped until it had proceeded at least 350 feet beyond the crossing where the accident occurred. In order to fasten liability upon the defendants it is necessary to prove that the shock from which Deiss died was sustained at some point between 350 feet and 1,287 feet west of the crossing, where the train stopped; and yet we do not find one iota of testimony, expert of otherwise, as to when the shock was received, or even when it is probable that it was received. It is so obvious that the verdict in this action was based purely upon guess, surmise, speculation and conjecture, instead of upon evidence as that term is used in the law, that we might well rest our case here, but inasmuch as this matter has been passed upon in other jurisdictions, we desire to call the court's attention to the following cases: Giannini v. Southern Pacific Co. (Cal.),276 P. 618; Cox v. St. Louis, San Francisco Ry. Co. (Mo.),9 S.W.2d 96; Plinkiewisch v. Portland R.L. P. Co. (Ore.), 115 P. 151.

It is submitted that the question asked by defendants' counsel on cross-examination of the witness Dr. Pope, as to what point deceased received the shock that produced his death, was proper as being within the scope of the direct examination and for the purpose of testing the knowledge of the witness. Dr. Pope qualified and was testifying as an expert witness. It was therefore the right of the defendants to inquire into his knowledge of the matters to which he was testifying, and to question him upon the nature of such injuries, the results and causes thereof, the circumstances under which they are ordinarily inflicted, and relative matters. Inasmuch as the time when the shock was suffered is one of the important points in the case at bar, it is submitted that the ruling of the court sustaining the objection to the question was error highly prejudicial to the defendants. The decisions cited by appellants to support their first assignment arose, in nearly all those cases, where a demurrer, before trial, had been leveled at the complaint on different grounds and sustained, and the plaintiff, refusing to amend, took the exact question to the appellate court; or, in some cases, the demurrer was overruled and the defendant refused to plead further, and took the exact question to the appellate court. But here we have a different situation. No ruling was made upon any demurrer, and no ruling was called for; an answer and reply were filed, and the case went to trial and a verdict was rendered, followed by entry of judgment.

In the case at bar the plaintiff, without objection, introduced evidence proving, or tending to prove, that on the 2d day of September, 1930, Christian Deiss, the deceased, drove his automobile up Bridge street, of Winnemucca, Nevada, and directly onto the railway crossing of the Southern Pacific Company, in front of an engine pulling a train of seventy-seven cars. His automobile was caught by the pilot of that engine. He was negligent in so placing the automobile which he was then driving, but as soon as the engine and its pilot picked up the automobile the negligence of Deiss "stopped." The defendant Thoni knew, or by ordinary care should have known, the dangerous position in which Deiss then was and the inability of Deiss to extricate himself from his then dangerous position. The engineer could have stopped his train within a distance of three hundred and fifty feet, but he carelessly, negligently, and without any regard for the life or limb of Christian Deiss, permitted his train to go for a distance of over twelve hundred feet. After the engine had traveled some five hundred feet, Deiss subsequently sustained a great shock to his nervous system, from which he died the following morning. A verdict was rendered upon that evidence. In support of our position we cite the following authorities: 49 C.J. at p. 486, sec. 1249; Williamson P.C.R. Co. v. Charles' Adm'r. (Ky.), 181 S.W. 614; McHargue v. Caschina (Ore.),153 P. 99; Gynter v. Brown and McCabe (Ore.), 134 P. 1186; Eylenfeldt v. United Railroads (Cal.), 151 P. 294; Levey v. Fargo, 1 Nev. 415,418; Humason v. Michigan Central (Ill.), 102 N.E. 793; Houghton and Palmer v. Beck (Ore.), 9 Or. 325; Treanor v. Houghton (Cal.), 36 P. 1081; Township of Lincoln v. Cambria Iron Co. (U.S.), 26 Law. Ed. 518; Moss v. Goodhart (Mont.), 131 P. 1071; Wills v. Claflin (U.S.), 23 Law Ed. 490.

The law in the State of Nevada has been settled as to the doctrine of the "Last Clear Chance"; the rule set forth in appellant's brief is not the rule in this state. Weck v. Reno Traction Company, 38 Nev. 296, 149 P. 65. Therefore, the statement in appellant's brief that "actual perception is necessary to call into play the exceptions to the general rule as to contributory negligence and to fasten liability upon a defendant," is not the law in this state, and the numerous cases cited by appellants are of no weight in deciding the question before the court.

Yet, in support of the rule settled by the supreme court of this state, the plaintiff submits that there is definite and positive evidence in the record, which was presented to the jury, that the defendant Thoni, the engineer on the train which struck the automobile driven by Deiss, knew of the dangerous and perilous position of the deceased at the time he was struck by the train. There is positive and undisputed evidence that the whistle on the engine had blown just prior to and as it was approaching the crossing; that the Bridge street crossing was a public crossing in the city of Winnemucca for residents and the public to use in going to and from the south portion of Winnemucca to the main part of Winnemucca, and had been for more than twenty years last past; that the automobile when struck by the engine lodged on the right-hand side of the pilot of the engine, and that the right rear wheel protruded over the side of the engine and was dragging along, plowing a furrow and throwing dust and rocks along the right-hand side of the engine. All of this evidence clearly indicates that the engineer, as a matter of common knowledge, was in his seat on the engine, blowing the whistle, prepared to give the necessary warning and was giving the necessary warning at a public crossing, and saw the defendant approaching and struck by the train.

The evidence in the record, and considered by the jury, is conclusive that the train could have been stopped within three hundred to four hundred feet. There is absolutely no evidence in the record to contradict or disprove this fact. Instead, the uncontradicted evidence shows that the engineer did not start to stop the train until the engine had gone about five hundred or six hundred feet from the crossing, and that he did not bring the train to a full stop until the engine had reached a point about 1,287 feet west of the crossing.

There is absolute and positive evidence in the record from which the jury could infer when the profound shock was received. Under the law the jury had the right to infer when it was received, from the facts presented. It was not a matter of conjecture or speculation, as the appellants would like to have it appear, but rather a legal inference drawn by the jury from facts presented to it by the evidence introduced and admitted.

The court rightfully and legally sustained the objection to the question propounded by counsel for defendants to Dr. Pope. Counsel for defendant was endeavoring to present a defense by testimony under cross-examination, which was not brought out or touched upon in direct examination, was not proper cross-examination, and intended entirely as evidence to support the defense of defendants. The question as to when the deceased received the profound shock cannot be construed, in the light of the direct examination, as to test the knowledge of the witness in reference to the testimony he had given. His testimony was confined to the cause of the death of the deceased.

OPINION On the afternoon of December 2, 1930, at the city of Winnemucca, Christian Deiss, for some unknown reason, drove his automobile directly in front of appellant company's freight train, "Extra 4373 West," the engine of which collided with said automobile at a point where Bridge street crosses said company's tracks. The automobile, with Deiss in it, was picked up and carried on the pilot of the engine until the train stopped at the station — the engine stopping at a point approximately 1,287 feet from said Bridge street railroad crossing. Deiss was here removed from the automobile and taken to a hospital, where he died on the following day; death being due, not to physical injuries, but to profound shock.

Respondent, Deiss' widow, brought this action as administratrix of his estate to recover damages from appellant company and appellant B. Thoni, engineer operating the engine at the time of said accident. Appellants filed a general demurrer, but so far as the record shows the demurrer was not presented to or ruled on in the trial court. Appellants later answered the complaint, denying any negligence on their part and setting up two affirmative defenses alleging contributory negligence on the part of Deiss. In her reply to the new matter in said answer, respondent denied that Deiss' negligence alleged in the two affirmative defenses contributed to or was the cause of his death.

The case was tried with a jury in the Sixth judicial district court, county of Humboldt. In his opening statement, counsel for respondent admitted that Deiss was careless in driving his automobile onto the crossing directly in front of the oncoming train, but told the jury that a verdict would be asked upon the ground of appellants' negligence in not stopping the train within some 350 feet from the point of collision.

At the conclusion of respondent's presentation of evidence, appellants moved for a nonsuit, which was denied; whereupon they rested, and then moved the court to direct the jury to find a verdict for the appellants. The court also denied this motion. The jury returned a verdict for respondent in the sum of $5,000. Appellants moved for a new trial, which was denied. Thereupon appellants appealed to this court from the judgment, and from the order denying a new trial.

1. Appellants contend that the complaint fails to state facts sufficient to constitute a cause of action. Respondent argues that this objection has been waived by appellants, and that the defect, if any, has been cured by the verdict, for the reason that the point was not urged in the court below. Counsel for respondent are in error on this point; for, while in many states such defect may be waived or cured, it is settled in Nevada, as pointed out in appellants' closing brief, that where this defect exists, it is not waived, or the defect cured by verdict, by reason of the fact that it was not urged in the trial court. Nielsen v. Rebard, 43 Nev. 274,183 P. 984; Nichols v. Western Union Tel. Co., 44 Nev. 148,191 P. 573; N.C.L. sec. 8601.

2. It is true, however, as stated in Nielsen v. Rebard, supra, that "courts do not look with favor upon objections of this kind when made for the first time in the appellate court"; and respondent is correct in her position that after verdict the complaint will receive a liberal construction. Baldwin v. Wells (Mo.App.), 27 S.W.2d 435; Gynther v. Brown, 67 Or. 310,134 P. 1186; Stevens v. Westport Laundry Co., 224 Mo. App. 955,25 S.W.2d 491; Blashfield Cyc. of Automobile Law and Prac. (Permanent Edition, 1935), sec. 5932.

To better understand appellants' contention and this court's ruling thereon, the appropriate portions of respondent's complaint are here given:

"That on the 2d day of December, 1930, and for several years prior thereto, said portion or part of said railroad and tracks and the space between said track and that immediately contiguous thereto were frequently and constantly used as a passage or crossing way by the public generally, in walking, driving automobiles, and passing and repassing and along, over, and across the same, all of which was with the knowledge and acquiescence of the defendants, so that and by reason thereof it became and was the duty of the defendant, Southern Pacific Company, and its servants, and particularly the defendant, B. Thoni, in charge and control of its locomotive engines whilst operating and running said engines near to and over and along said portion or part of said railroad and tracks to exercise ordinary care and to keep a reasonable lookout for such persons as the defendants might reasonably expect to be upon or dangerously near to and about to go upon said railroad and tracks at the part or portion thereof aforesaid in order to discover and avoid injuring them.

"That on the 2d day of December, 1930, the said Christian Deiss, then and there occupying and driving an automobile, ran the same in front of an engine then attached to a train of 77 cars, and known as Train Extra West No. 4373, belonging to the defendant, Southern Pacific Company, and in control of the defendant, B. Thoni, who was then and there the engineer on said engine.

"That at the same time, the said engineer had a continuous, full and unobstructed view of the said Christian Deiss, then and there driving said automobile upon said railroad and tracks, for the distance of about fifty yards.

"That the said train so operated by the said defendant, Thoni, was being operated at a speed of about thirty miles per hour.

"That the defendant, Southern Pacific Company, and the defendant, Thoni, its locomotive engineer and servant in charge and control of said locomotive engine, carelessly and negligently failed to discharge their duties as aforesaid and did not use ordinary care, or any care whatever to keep a reasonable lookout to discover the said Christian Deiss aforesaid as it was his duty to do, but he kept no reasonable lookout whatever, and that the said engine ran into and carried the said Christian Deiss and the said automobile in which the said Deiss was then and there seated, a distance of more than 1,100 feet and by reason whereof the said Deiss, on the 3d day of December, 1930, died from shock to his nervous system.

"That from the position of the defendant Thoni, and from his place in and on said engine, the said engineer could have stopped said engine and cars in a distance of 250 feet, and that the life of the said Christian Deiss would thereby have been saved.

"That the said defendant, Thoni, then and there and at the time of striking the automobile of the said Christian Deiss, knew, or had good reason to believe that the said Christian Deiss was not aware of the danger the said Christian Deiss was then in and that the engineer, the said defendant Thoni, saw the said Deiss in such a position and in time to prevent injury to the said Deiss, and in time to have prevented the said Deiss from dying of shock.

"That the said Deiss, at the time of his death, was of the age of about 57 years."

3. The basis of the last clear chance doctrine, as set forth in the 1935 permanent edition of Blashfield's Cyclopedia of Automobile Law and Practice, is this: "A plaintiff who has negligently placed himself or his property in a situation of imminent peril and is either unconscious of the situation, or unable to avoid the danger, or both, may nevertheless recover damages of the defendant who negligently inflicts injury, if the defendant could have avoided the injury after discovering the plaintiff's peril." Vol. IV, p. 536.

4. The complaint in the case at bar, while imperfectly drawn, contains, either directly and positively on the one hand, or by necessary implication or reasonable inference on the other, all the essential elements of a last clear chance case. That deceased was in a position of peril from which he could not extricate himself clearly appears from the allegation that he and the automobile he was driving were picked up by the pilot of the engine when the train was traveling about 30 miles per hour and carried more than 1,100 feet. It is expressly alleged by direct allegation that it was the duty of defendant and its servants "to exercise ordinary care and to keep a reasonable lookout for such persons as the defendants might reasonably expect to be upon or dangerously near to and about to go upon said railroad and tracks at the part or portion thereof aforesaid in order to discover and avoid injuring them." It also appears from the complaint that defendants had actual or constructive notice of deceased's peril. The allegations of the complaint are sufficient to show, further, that defendants, after they became aware or should have become aware of deceased's peril, had the present ability, with means in hand, to have averted Deiss' death, that they failed to do so, and that by reason thereof Deiss lost his life. Pollard v. Oregon Short Line R. Co., 92 Mont. 119, 11 P.2d 271; Baldwin v. Wells, supra; Stevens v. Westport Laundry Co., supra; Banks v. Morris Co.,302 Mo. 254, 257 S.W. 482; Louisville N.R. Co. v. Scott,222 Ala. 323, 132 So. 29.

There does not appear to be any direct or positive allegation in the complaint that defendants, after Deiss' peril was or by the exercise of ordinary care should have been discovered, failed to use ordinary care in not stopping the train within the distance it could reasonably have been stopped; but, as stated in Illinois Cent. R. Co. v. Tolar's Adm'r., 169 Ky. 114,183 S.W. 242, 244, "a failure to use ordinary care to avoid injuring decedent, who was a member of the public, after his peril was or might have been discovered by the exercise of ordinary care, was necessarily included in the charge that the engineer failed to keep a lookout, and failed to take such care as would protect the public at the crossing."

5-7. Appellants next contend that there was no evidence proving or tending to prove that Thoni, the engineer, saw the deceased, and that hence the last clear chance doctrine does not apply. We are fully aware of the numerous decisions of courts of high standing supporting the rule that actual perception by a defendant of plaintiff's peril is necessary to bring a case within the humanitarian doctrine. This court, however, is clearly satisfied that the better rule makes actual perception unnecessary, and that if the defendant "would have discovered plaintiff's situation and thus had reason to realize the plaintiff's helpless peril had he exercised the vigilance which it was his duty to the plaintiff to exercise" [Restatement of the Law, Torts, vol. 2, sec. 479], the case comes within the aforesaid doctrine [Week v. Reno Traction Co., 38 Nev. 285, 149 P. 65; Pollard v. Oregon Short Line R. Co., supra; Payne v. Healey, 139 Md. 86, 114 A. 693; Berry, Automobiles (7th ed.), p. 420; Linney v. Chicago, M. St. P. P.R. Co., 94 Mont. 229,21 P.2d 1101; Thompson's Commentaries on the Law of Negligence, sec. 1629; 2 Sherman Redfield on Negligence (5th ed.), 783]. It may be observed here that it was the duty of the engineer and fireman to keep a vigilant lookout as they were approaching the Bridge street crossing. Pollard v. Oregon Short Line R. Co., supra; Payne v. Healey, supra; Smith v. Chicago Great Western R. Co. (Mo.App.), 282 S.W. 62.

8, 9. We have next to consider appellants' claim that there was no evidence proving or tending to prove that the train could have been stopped in a shorter distance than it was. This contention is wholly without merit. The witness Wrede testified that the train started to slow down when it was about opposite the center of the Southern Pacific warehouse, and that it came to a gradual stop 30 or 35 feet east of the yardmaster's office. Witness Davis testified that the train began to make a slow stop some 300 feet west of the Bridge street crossing; that it began to "slow up slowly. He made a slow stop." Witnesses Davis, Beach, Wagner, and Lillie testified regarding emergency and service application of air brakes; the high class of equipment on the Southern Pacific engines, including the engine that hauled the particular train which figured in said accident; that such a train could be stopped in from 300 to 400 feet. There was ample evidence to justify its submission to the jury on the particular issue in question. Westerdale v. Northern Pac. R. Co., 84 Mont. 1,273 P. 1051; Citizens' St. R. Co. v. Hamer, 29 Ind. App. 426,62 N.E. 658, 63 N.E. 778; Payne v. Healey, supra; McMahon v. Joplin P.R. Co., 96 Kan. 271, 150 P. 566; Hoyer v. Lake Shore Electric R. Co., 104 Ohio St. 467, 135 N.E. 627; Cleveland C.C. St. L.R. Co. v. Henson, 54 Ind. App. 349, 102 N.E. 399. In making out a prima-facie case, we do not consider that it was necessary for plaintiff in the court below to show that the service brakes on the engine had not been applied at the time of the collision, or that the brakes on the engine or train were in good condition. Such matters were peculiarly within the knowledge of the defendants and, if true, could properly have been offered in behalf of the defendants.

10. In connection with the matter now under discussion it is not amiss to observe that where, as in this case, no evidence was offered in behalf of the defendant, the evidence is to be construed most favorably for plaintiff, and every fact must be deemed established which the evidence tends to prove. Westerdale v. Northern Pac. R. Co., supra; Hoyer v. Lake Shore Electric R. Co., supra; Gambling v. Missouri Pac. R. Co. (Mo.App.),40 S.W.2d 766; Gardenhire v. St. Louis-San Francisco R. Co.,224 Mo. App. 586, 31 S.W.2d 113; Gordon v. Postal Telegraph-Cable Co. (Mo.App.), 24 S.W.2d 644.

The fourth point urged upon the court by appellants on this appeal is that there was no proof that the negligence of appellants, if any, was the proximate or any cause of the death of Deiss. It is admitted by respondent that there is insufficient evidence to hold appellants liable for the collision, and as respondent's evidence indicated that the train could have been stopped within 350 feet of the crossing, it follows that in order to uphold the verdict and judgment of the trial court it must appear that there was sufficient evidence to warrant that court in submitting to the jury the question as to whether the shock from which Deiss died was received easterly or westerly of a point approximately 350 feet westerly from said Bridge street crossing. Appellants' position is that there was no evidence whatever as to when the fatal shock was received, or even when it is probable that it was received. Therefore, they argue, the verdict must necessarily have been based purely upon guess, surmise, speculation, and conjecture. For this reason alone they contend that the district court should not have submitted the case to the jury. In support of their argument counsel cite Giannini v. Southern Pacific Co., 98 Cal. App. 126, 276 P. 618; Cox v. St. Louis-San Francisco Ry. Co., 223 Mo. App. 14, 9 S.W.2d 96, and Plinkiewisch v. Portland Ry. L. P. Co., 58 Or. 499,115 P. 151. In order to understand appellants' contention it is proper that a few additional facts should here be stated.

When the train and automobile collided, the automobile, with Deiss in it, was picked up and carried on the pilot of the engine to a point approximately 1,287 feet westerly from the Bridge street crossing. The automobile rested more on the right than on the left side of the pilot, the rear end extending somewhat beyond the right side of the pilot. One of the rear wheels on the automobile was crushed and one end of the rear axle, at a point about 50 feet west of said crossing, began to drag along the right side of the track, making a furrow which continued to the place where the engine finally stopped; Deiss being still in the automobile but leaning through the window of his car and holding on to an iron bar on the pilot. He was removed from the automobile almost immediately after the train had stopped. His hands, when he was being taken from the wreckage, were clasped so tightly around the iron bar on the pilot that it was necessary to pry his fingers loose. He had a look in his eyes described by one witness as "wild," and which another witness testified he would never forget. When the doctor arrived at the place where Deiss was removed from the automobile and engine pilot, he found "a very rapid weak heart action, very slow respiration * * * no pulse." The only physical wounds were a slight scalp wound and a slight wound of the right leg. The doctor testified that the physical wounds were not such as to cause death and that death was the result of profound shock. The train was traveling about 25 or 30 miles per hour at the time of the collision. The day was warm and clear. 11. We are of the opinion that the district court was correct in its view that there was sufficient evidence on this issue to be submitted to the jury. It is obvious that no one could or can say with certainty at what point between the Bridge street crossing and the place where Deiss was removed from the automobile the shock became so grave as to cause death. But we are not prepared to say that where, as in this case, appellants negligently dragged the automobile some 900 feet farther than the point where the train could with reasonable and ordinary care have been stopped. Deiss being all this time alive and trying desperately to save himself, the trial court was not justified in submitting the case to the jury, nor that the jury was not justified as reasonable men in finding that the evidence preponderated in favor of the fatal shock having been received westerly, rather than easterly, from the place where the train could have been stopped. Direct or positive evidence is not always necessary on such issues. Circumstantial evidence may be and frequently is sufficient to warrant the submission of such cases to a jury. Westerdale v. Northern Pac. R. Co., supra; Hoyer v. Lake Shore Electric R. Co., supra; Cleveland C.C. St. L.R. Co. v. Henson, supra.

12. Appellants assign as error the action of the trial court in sustaining an objection to a question asked Dr. Pope on cross-examination. After Dr. Pope had testified that the physical injuries were not such as to cause a nervous shock and that Deiss died from shock, counsel, on cross-examination, asked the witness the following question: "Assuming that he (Deiss) was riding in the car across the Bridge street crossing, and that his car was struck by this engine which you saw there, and the engine was, the car was carried on the pilot of the locomotive down to the point where you saw the wreckage, or near thereby, and that Deiss remained in the car, or on the pilot until the engine stopped at the point where you saw it * * * could you tell from those facts, if you so believe it to be a fact, at what point he received the shock that produced his death?"

To this question respondent objected upon the ground that it was not proper cross-examination. The objection was sustained. We are of opinion that this was not error. The testimony of Dr. Pope, who was appellant company's district surgeon, was confined strictly to the cause of the death. Dr. Pope did not witness the accident, and we do not believe that the hypothetical question asked by appellants' counsel comes within the scope of cross-examination. 70 C.J. pp. 626, 653-655.

Appellants assign as error the action of the lower court in giving instruction No. 22 and the refusal by said court to give appellants' requested instructions 1, 6, 8, 10, and 11. The questions of law involved in this assignment have been discussed in this opinion. We find no error in giving the instruction objected to or in refusing to give the said instructions requested by appellants.

The judgment and order appealed from are affirmed.

DUCKER, C.J.:

I concur.