
    NEGLIGENCE — RAILROADS.
    [Cuyahoga Circuit Court,
    December 4, 1899.]
    Caldwell, Hale and Hull, JJ. .
    (Hull, J., sitting in place of Marvin, J.)
    Cleveland, Chicago, Cincinnati & St. Louis Railway Co. v. M. E. Richerson.
    i. Rule as to Reversal by Reviewing Court.
    A reviewing court should not reverse on the ground that the verdict is against the weight of the evidence unless the verdict or finding is so clearly ’ unsupported by the weight of evidence as to indicate some misapprehension or mistake or bias or a wilful disregard of duty.
    
      
      2. Negative Statements — Affirmative Testimony.
    The testimony of a witness who was near enough to hear and see, that he was paying particular attention and that he looked and listened for a train, and that the bell was not rung nor the whistle sounded, is not negative testimony; it is as much positive or affirmative testimony as that of a witness who testifies that a signal was given.
    •3. Rote as to Such Testimony.
    The court properly refused to charge the jury that where all the witnesses are unimpeached, they “ must give the greater weight to the testimony of those who speak positively.”
    -4. Leaving Cars on Track near Crossing.
    While it is not per se negligence on the part of a railroad company to leave cars on its tracks close to the crossing, if they are not on the highway, it would be misleading to so instruct the jury, in a case where the negligence complained of was in leaving the cars upon the track close to the crossing and starting a locomotive from behind them, without warning.
    -5. Failure to Maintain Gates or Flagmen.
    The failure to maintain gates or flagmen at crossings outside a municipality, is ■ not, as a matter of law, negligence; but whether the circumstances of a particular case or the situation at a particular crossing, required, in the exercise of ordinary care, gates or flagmen is a question for the jury.
    ■6. Limits for Sounding Bells and Whistles. j
    Instructing the jury that the law imposes upon a railway company the duty “within certain limits and certain places” to sound bells and whistles, and : that, therefore, if the jury find that the railway company failed to sound its ¡ whistle or ring its bell “within the limits prescribed for this crossing,” etc., \ without stating the limits, is not erroneous in the absence of a request by the railway company that the jury be so instructed.
    ".7. Rule as to Proximate Cause. i
    A charge that “if you find that defendant company failed to sound its whistle or, ring its bell within the limits prescribed for this crossing, and by reason of that, and without fault on the part of. the plaintiff contributing proximately to her injuries, if you so find she was injured, etc.” is equivalent to saying thaC if the jury find by reason of the failure of the company to sound its whistle ¡ or ring its bell the plaintiff was injured, the company would be liable; an i particularly when followed by the question “if they were not sounded, did' the failure to sound them upon that occasion, either the one or the other, proximately contribute to or cause the injuries to the plaintiff,” which gives the jury fairly to understand the rule.
    Error to the Court of Common Pleas of Cuyahoga county.
   .'Hull, J.

This was an action for damages, brought by Mrs. M E. Richerson, the plaintiff below, against the plaintiff in error, for injuries which she claims she sustained on account of the negligence ot the railroad com-pany on or about June 16, 1H97.

The care was tried to a iurv and a verdict returned for $500.00, upon which judgment was rendered by the court of common pleas, and error is prosecuted in this court to reverse that judgment.

Counsel fcr plaintiff in error insists that the judgment should be reversed : *

First: Because the verdict ivas against the weight of the evidence.

Second: On account o). errors in the charge of the court.

’ Third: Error in refusing to give instructions requested by the railroad company.

The negligence of which the plaintiff below complained against the .railroad company was the management of its trains and cars in and about . a certain crossing, over Front street, just east of the village of Berea, in this couniy.

The railroad company has, and at the time of this accident had, at this crossing five tracks laid closely together over said crossing.

The plaintiff and her husband were approaching the crossing in a buggy, Mr. Richerson driving the horse. They both testify, positively, that the. horse was on a walk, and that they looked and listened for approaching trains .and heard neither bell nor whistle. They testify that their view was obstructed by cars standing upon the railroad track nearest to them, on each side of the crossing, leaving a space between about wide enough for two vehicles to pass. They say they saw no train and heard none, and that just as their horse reached the first track, a locomotive, which was attached to some cars and standing on the middle track, started east. They say that this locomotive was obscured from their view by the cars standing on the first track, that they did not see >it nor hear it until their horse, reached the first track. That the noise of the. locomotive in starting, the puffing, as he witnesses call it, or the exhaust from the locomotive, frightened the horse that he reared, backed up and whirled around, tipping over the buggy about fifty feet from the crossing, throwing Mrs. Richerson out and inflicting personal injuries on her. of which she complains.

The plaintiff below complains of several acts of negligence on the part of the railroad company : that the company was negligent in having :ts cars standing on the crossing so near the highway; in not having a flagman to notify travelers of the approach of trains; in having a locomotive standing so near the highway obscured by cars, and starting the same without making any effort to ascertain whether travelers were approaching; and, further, that the company was negligent in approaching the crossing with its locomotive, without giving a signal either by bell or whistle. All these things are complained of against the company.

But the case turns largely upon the question whether the signal by bell and whistle, or either of them, was given, for if the bell was rung or the whistle blown near the crossing, if plaintiff and her husband were looking and listening, as they testify they were, they must have heard the. signal, and if plaintiff heard the signal in time, of course she would be guilty of contributory negligence in attempting to cross with knowledge that the train was approaching.

.And it is urged bv counsel for the railroad company, that the manifest weight of the testimony is in favor of the claim that the signal was given by both bell and whistle, and that for this reason the verdict should be set aside

As has been stated the plaintiff and her husband both testify positively, that as they approached the crossing with their horse on a walk, they looked and listened and heard neither bell nor whistle, and had no knowledge of the proximity of the locomotive until their horse was upon the first track.

Five witnesses, called for the railroad company, testify that the signals were given; thev were the fireman, the engineer, two brakemen and a witness by the name of Knight, who was sitting in front of a neighbor* ing saloon reading a newspaper.

Counsel for plaintiff in error insists that affirmative evidence of this character is entitled to greater weight than the testimony of Mr. and Mrs. Richerson, which counsel denominates nagative testimony, and an instruction based upon this claim was asked of the court and refused. The instruction requested was as follows:

“Where there are witnesses who testify positively as to a fact, and others who merely testify negatively, as to that which they did not. see or hear, and all oi the witnesses are ummpeached, the jury must give the greater weight to the testimony of those who speak positively.”

In our judgment the claim of counsel for the company can not be maintained, and, under the testimony in this case this instruction was properly refused by the court.

Something similar to it, however, was given in the general charge.

The testimony of a witness who is near enough to hear and see, that he was paying particular attention and that he looked and listened for a train, and that he saw no train, and that the bell was not rung nor whistle sounded, is not negative testimony, but is as much positive or affirmative testimony as the testimony of a witness who swears that a signal was given. Where a witness testifies simply that he did not hear a signal given and the fact is that at the time he was not giving particular attention to the subject and can go no further than to simply say he did not hear it, that is negative testimony; but the testimony of Mr. and Mrs. Richerson was not of that character.

The court of this circuit held in L. S. & M. S. Ry. Co. v. Schade, 8 Circ. Dec., 316, that such testimony as that of Mr. and Mrs. Richerson is not negative testimony and is entitled to the same weight as what is usually denominated affirmative testimony, the court say, through Caldwell, J., speaking for the majority of the court, on page 323 of the opinion:

“There were several road crossings between where they were and Nottingham, and they were listening for the approach of that train and paying particular attention, and they say that the bell did not ring at any of these road crossings, nor did the whistle blow; and they testify the same as to this crossing here. That is not negative testimony. Where a person testifies that he was looking or listening and paying particular attention to a certain thing as to whether the bell rings or not, and then testifies as to that that it did ring or that it did not ring, one is as positive as the other.”

This case was afterwards affirmed by the Supreme Court without report.

This proposition so stated by Judge Caldwell, is abundantly supported by the authorities: 72 Ill., 235, the first paragraph of the syllabus: syllabus:

“Where witnesses who, at the time of an accident at a railroad crossing were within thirty yards of it. testify that they were in a situation to have heard a bell ring or whistle sounded, if there had been any rung or sounded, and that they did not hear any, such testimony can not be"regarded as negative testimony.”

79 Iowa, 389, the sixth paragraph of the syllabus:

“In such case an instruction was properly refused which charged that ‘affirmative testimony, as that a bell was rung or a whistle sounded, is entitled to more weight than negative testimony as that a bell or whistle was not heard,’ because i: ignored the comparative credibility and means of knowledge of the witnesses.”

Wharton on Evidence, vol. 1, sec. 415:

“A. negative witness, also, whose attention is concentrated on a particular point, may outweigh an affirmative witness whose attention has net been so concentrated”

And upon the same general proposition, Jones on Evidence, vol. 3, sec. 901:

“But the rule that positive testimony is of greater weight than negative testimony has some important exceptions, and it should never come in conflict with the general rule that the weight of the testimony should be left to the jury • such testimony is admissible, and, together with corroborating circumstances may outweigh positive testimony. As will be seen from flu? cases already cited, this question of the weight to be given to negative testimony often arises in railroad and other accident cases where it is claimed that signals were not given. In such cases the question is purely for the jury, and it has often been held that negative evidence was sufficient to sustain a verdict.”

In a case of this character the law imposes upon the plaintiff the burden of proving that the signals wore not given. To impose this burden upon the plaintiff and then discredit his testimony by having the jury instructed that it is not to receive the same weight as the testimony of the witnesses who testify that the signal was given, would be both unjust and unreasonable,and is not the law. But where a witness testifies, as Mr. and Mrs. Richerson do in this case, that the}* were giving special attention to the subject were both looking arid listening, and testify positively that no signal was given, such testimonv is entitled to be regarded as positive testimony and to be given the same weight and consideration

The Supreme Court has said in Dean v. King, 22 Ohio St., 118:

“A reviewing court should not reverse unless the verdict (or finding of fact if the jurv be waived) is so clearly unsupported by the weight of evidence as to indicate some misapprehension, or mistake, or bias, or a wilful disregard of duty.”

Although the witnesses called for the defendant below outnumbered '•hose called by the plaintiff, the weight of the testimony and the credibility of the witnesses was a question for the jury, and we are unable to say that their finding under the rule laid down by the Supreme Court was against the weight of the evdence. The plaintiff and her husband were, of course, interested witnesses; but, on the other hand, the trainmen who testified were not entirely disinterested. As was said by the Court of Appeals of New York, 101 N. Y., 442, in speaking of the testimony in such a case:

“They were, however, in the employ of the defendant; themselves interested in proving that the proper signals were given by those instruments, and the law docs not require an adverse party to put his case in the hands ot persons having such 1 Nations to the transaction.”

The claims of plaintiff as to the location of the cars upon the tracks at each side of the crossing, and as to the location and management of the locomotive which it is claimed frightened the horse have been stated. There was some conflict in the testimony upon this subject. Witnesses called by the defendant below testified that the cars standing-on the first track were outside of the highway, and the railroad-men upon the locomotive and train which frightened the horse, testified that .the train was not stopped on the track, but moving slowly and making no more than the usual noise. The locomotive was attached to a number of freight cars that had been picked up in the yards at Berea and started east for 'Cleveland. We think that the question of the railroad company’s negligence, under the testimony, was proper to be submitted to the jury, and that it cannot be said that the finding of the jury was against the weight of the evidence.

Second. The plaintiff m error complains further of an error in the charge of the court. The court charged the jury as follows:

“The law imposes upon the defendant the duty, within certain limits -and certain places, to sound bells and blow a whistle, and the failure to •do that is charged as one of 'he acts of negligence, which it is.claimed by the nlaintiff was proximately the cause of her injuries. So if you find that the defendant company failed to sound its whistle or ring its bell, within the limits prescribed for this crossing, and by reason of that, and without fault on the part of the plaintiff contributing proximately to her injuries, if you so find, she was injured, then liability would attach to the defentant company for her injuries and a recovery .could be had on that ground.”

It is insisted that this instruction is erroneous because it states that the defendant ivas by law compelled to ring bells and blow a whistle within certain limits, withoir these limits being given by the court. In the absence of any request on the part of the defendant below to state these limits to ’he jury, we think this was not erroneous. I.t is probable that in the argument by counsel to the jury the statutory limits had been mentioned.

It is further claimed, that according to this instruction, if the signals vo re not given the company would be liable for plaintiff’s injury, whether the failure to give such signals was the proximate cause of her injuries or not. We do not think that this construction can be placed upon the language used by this court. The court said:

“So if you find that the defendant company failed to sound its whistle nr ring its bell within the limits prescribed for this crossingand by reason of that and wthout fault on the part of the plaintiff contributing proxi-matidv to her injuries, if you so find she was injured, then liability would •attach,” etc.

This was equivalent to saying to the jury that if they found that by reason of the failure of the company to sound its whistle or ring its bell the plaintiff was injured, the company would be liable. And -in the next paragraph of the charge the court said :

‘If they were not sounded, did the failure to sound them upon that occasion, either the one or the other, proximately contribute to or cause the injuries to fhe plaintiff?”

Taking these instructions together, we think the jury were given fairly to understand that the company would not be liable for a failure to blow the whistle or ring1 the bell unless such failure proximately contributed to plaintiff’s injuries.

At the conclusion of the court’s general charge, counsel for the railroad companvwequestdd thirty-five separate instructions, nine of which were given and twenty-six refused; and on account of each of these, refusals error is charged.

Request No. I asked that a verdict be instructed for the defendant,

This, under our views, was, of course, properly refused.

Request No. 2 asked that the jury be instructed that the defendant was not required to maintain a flagman at the crossing, and that the failure to have a flagman there could not be charged as negligence.

B. A Foote, for plaintiff in error.

!'Noble, Pinney & Willard, for defendant in error.

It is true that it is not negligence as a matter of law not to have a flagman at a crossing outside of a municipality. Whether the circumstances of this particular case and the situation at this crossing required a flagman in the exercise of ordinary care or not, was a question for the jury. t

t Request No. 3 was similar to No. 2, except that gates were included , with a flagman.

Request Mo. 4, was as follows:

“The defendant was not negligent in leaving cars on its tracks close to the crossing of Front street, so long as said cars were not upon the highway.” ’

The leaving of the cars upon the tracks and having the locomotive behind them, and starting the locomotive without warning so as to frighten plamtifFs horse, was the negligence complained of in this action. While it would not be negligence standing alone on the part of the railroad company to leave cars on its tracks, close to the crossing if they were not in the highway, still it would be misleading to the jury to have them so instructed in this case, because that in connection with other acts constituted the negligence complained of. The leaving of the cars on or near the highway was only one of several things complained of, all of which, taken together, the plaintiff charged as negligence against the defendant.

The same general objection can be made to very many of the other requests which were refused. Some act or item of conduct is selected and the court is requested to charge the jury that that alone would not constitute negligence, and these instructions containing this objectionable feature were properly refused. Some of the requests refused were objectionable on other grounds, and some were covered by the general charge. It is not possible to review all these requests within the limits of this opinion.

It is sufficient to say that after a careful examination of all of the requests that were refused, we are of the opinion that there was no error in such refusal.

The charge of the court was very full and fair upon all of the issues ' of the case.

We find no error in the record, and the judgment is, therefore, affirmed.  