Missouri Pacific Railway Co. v. Hildebrand

Thé opinion of the court was delivered by ARLEN, J.: The first matter alleged as error is in permitting Otto Hines, who was in the section house a little distance north of the tracks, and who did not see the train at the time, but who heard the rattle and escape of steam from the engine, to testify as to the rate of speed at which it was going, and that it was going pretty fast. He stated that he was accustomed to seeing and hearing trains pass by, and could tell by the sound. We think there was no error in this ruling. The jury found that the engine was running “at a rapid speed.” The testimony of the engineer, Snyder, that he was not running over eight miles an hour, hardly tends to contradict this finding, for eight miles an hour, in a yard where there are many tracks obscured from view by standing cars, is a somewhat rapid speed. The principal claim of the plaintiff in error is, that the court erred in overruling the demurrer to plaintiff’s evidence. [290] We think there was sufficient evidence to challenge the consideration of the jury, and that the demurrer was rightly overruled. Complaint is also made of the refusal of the court to give certain instructions asked by plaintiff in error. While some of the instructions asked were correct declarations of the law, the general instructions given by the court were very full and fair, and embodied in substance all that the defendant was entitled to, and therefore no error was committed. It is apparent from the briefs that the defendant’s principal grievance is, that the jury believed the plaintiff’s witnesses rather than the defendant’s. Of course, it was their duty to determine what was truth, and what falsehood, where witnesses squarely contradicted each other. Their decision has been approved by the trial court, and no power “Tests with us to reverse their findings where there is evidence to sustain them. (Rapid Transit Rly. Co. v. Fox, 41 Kas. 715; Hodgden v. Larkin, 46 id. 454.) Judgment is affirmed. All the Justices concurring.