Frye v. St. Joseph Railway, Light, Heat & Power Co.

ON MOTION FOR REHEARING. In addition to that part of the testimony of the motorman set out in the original opinion, he testified as follows:

"I could see down the track but I could not see on the track and for that reason I changed that. I could have seen a man standing up or a man sitting down — I could have seen that — but I misunderstood if you could see down the track. I could see down the track but I could not see anything laying down on the ground in the grass.

"Q. Up until the time this occurred had you made a stop since you left Savannah? A. Just the one at Stop 8 when I cleaned the windows.

"Q. Stop 8 is the county line? A. Yes, sir.

"Q. Was it raining before you got to Stop 8? A. Yes.

"Q. And at that time was it getting difficult to see through your front window? A. Yes, sir.

"Q. And you stopped there and did what? A. Cleaned the window.

"Q. How far is it from the county line to Industrial City? A. Probably half a mile.

"Q. By the time that you had gotten down to — coming to Stop 4, was there water again on your window? A. Yes.

"Q. And it was difficult to see through? A. Yes, it was hard to see through.

"Q. At the time you were running from the county line, or from Industrial City down to where this accident occurred, were you looking out ahead all the time? A. Yes.

"Q. Was your headlight in good condition? A. Yes, sir.

"Q. Mr. Randolph asked you whether you could see clearly with that headlight. Tell the jury whether you could have seen an automobile on the track with that headlight four or five hundred feet away? A. Yes.

"Q. Could you have seen a man standing on the track? A. Yes.

"Q. Could you have seen a man sitting down on the track? A. Yes, I could have seen him sitting down.

"Q. How was Mr. Frye lying? Just tell the jury so they may thoroughly understand it. A. Lying right across the east rail just about here as near I could tell with his head on his face down in the weeds, and his feet was back over next to the other rail.

"Q. What was the color of his clothing? A. He had a dark-like shirt on. Looked like a blue shirt.

"Q. What was the color of the rest of his clothing? A. Dark.

"Q. How far out ahead of your car did the ray of your headlight hit the rails? A. Well, I expect it hits about five or six hundred feet away? A. Yes.

"Q. And at the time that ray of your headlight hit the rails where Mr. Frye was lying tell the jury if you were able to see anything at all on the track? A. No, you could not see.

"Q. Was there anything to indicate to you there was anything or anybody on the track? A. No.

"Q. From that time forward up to the time the accident occurred did you continue to look straight ahead? A. Yes, all the time.

"Q. You said you saw something on the track when you were 20 feet away. A. Yes.

"Q. Did you see anything at all on the track before you got within 20 feet of it? A. I did not.

"Q. Were you looking ahead all of the time? A. Yes.

"Q. Tell the jury why it was impossible to see anything. A. On account of the grass and weeds in between the rails and my light shines on them and it makes a shadow on the other side."

In its motion for a rehearing defendant says that we have held that an inference could have been drawn by the jury, which defendant says, would be a wholly unwarranted one and, even if it properly could have been drawn by the jury it took flight in view of the direct and positive testimony against the inference. The inference alluded to, of course, is to the effect that there was sufficient visibility for the motorman to have seen deceased in time to have stopped the car before running over him.

We do not think the inference suggested is either an unwarranted or unreasonable one nor do we think the evidence was such that the jury could not have indulged the inference at the end of the case.

It will be borne in mind that we are here dealing with an inference and not a presumption. There are some cases which refer to a presumption as an inference and others which refer to an inference as a presumption. This has caused considerable misunderstanding of the two terms. As was stated in Merkel v. Ry. Mail Assn.,205 Mo. App. 484, 492:

"There has been some confusion due to the inaccurate use of the words, `presumption and inference,' which in some instances has left the impression that presumption and inference are synonymous, whereas these words have distinct and separate meanings. The word `presumption' in the strict legal sense `should be applied only to a presumption of law,' and as such may be defined as `the deduction which the law expressly directs to be made from particular facts,' whereas inference as distinguished from presumption of law is `a deduction which may be made from any facts legally proved.' `The difference is that a presumption is a mandatory deduction, while an inference is a permissible deduction which the reason of the jury makes without an express instruction of law to that effect. [1 Jones on Evidence, 59.]"

It has often been said that where plaintiff relies on a presumption and the facts are made to appear the presumption takes flight.

However, when there is evidence, as here, upon which the jury may draw an inference they may draw it even though there be a host of witnesses who testify directly to facts contrary to or conflicting with such inference. [Bond v. St. Louis-San Francisco Ry. Co., 315 Mo. 987, 1002; State Hospital v. Cole County,272 Mo. 135, 140.] Of course, such an inference must be a reasonable one and not a forced or violent one nor one amounting to mere speculation. [Bushman v. Barlow, 316 Mo. 916, 939; Keim v. Blackburn, 280 S.W. 1046, 1048.] The inference sought to be relied upon in George v. Mo. Pac. R.R. Co., 213 Mo. App. 668, cited by the defendant rested upon pure speculation in view of all of the testimony. Such is not the case here.

However, defendant says that plaintiff is bound by the testimony of the motorman that he did not and could not have seen deceased in time to have stopped the car before running over him. In this connection defendant relies upon the well known rule that a party is bound by the testimony of a witness he places on the stand in the absence of any contradictory testimony. [See Orlann v. Laederich, 92 S.W.2d 190; Raw v. Maddow, 93 S.W.2d 282; Lolordo v. Lacy, 88 S.W.2d 353; Walradt v. St. Jos. Ry. Light, Heat Power Co., 48 S.W.2d 93.] Defendant says that the testimony of the motorman that he could not have seen deceased is not disputed. We think defendant is in error in this contention. Defendant gives no substantial weight to the testimony of plaintiff's other witnesses that the weeds in the track were not as high as the motorman stated. From the testimony of these other witnesses it would appear that the weeds were not of sufficient height or density to materially interfere with the motorman's view of deceased. It will be borne in mind that the motorman laid great stress on the fact that the vegetable growth, claimed by him to have been present, was a material element in making the conditions such as to render it impossible for him to have seen deceased. Aside from this the motorman in his deposition, testified differently than at the trial on the question of his ability to see clearly down the track. The testimony of the motorman that he could see down the track for a distance of 500 or 600 feet gives rise to an inference that he could have seen deceased 91 feet away lying across the rail, if the testimony of plaintiff's other witnesses is to be believed to the effect that the weeds were not high enough to materially obstruct his view. This is especially true when we remember that the motorman said that he could have seen a person sitting on the track 400 or 500 feet in front of him. This inference is in conflict with his testimony that he could not have seen deceased in time to have stopped the car. These circumstances were before the jury and it was authorized to give them consideration. [Gould v. C.B. Q.R.R. Co., 315 Mo. 713.]

Under all of the circumstances we would not be justified in denying the right to the jury to draw the inference that the motorman, by the exercise of ordinary care, could have seen an object lying on the track and that such object was the body of a human being. In this case there was the duty on the motorman to look out for pedestrians at the point in question. It would not be in accordance with the dictates of humanity for a motorman, upon seeing an object upon the track disclosing the outlines of a human being, to proceed as though it might be a bundle of clothes, a pile of rubbish or the such. If he could see down the track for a distance of 500 or 600 feet, and there were no weeds to materially obstruct his view, he must have seen the outlines of the body of deceased as he lay across the track. While the motorman denied that he saw anything whatever on the track in time to have stopped the car, the jury was not required to believe him in that regard. [Gould v. C.B. Q.R.R. Co.,supra.]

We think that the court committed no error in his ruling on the demurrer to the evidence. The motion for a rehearing is overruled. All concur.