Meyer v. People's Railway Co.

Currier, Judge, delivered the opinion of the court. This suit is brought upon the statute (Gen. Stat. 1865, p. 601, § 2). The defendant is a corporation operating a street-railroad in St. Louis. The petition alleges that John E. Meyer, without his fault, was run over by one of the defendant’s .cars, through the negligence of the defendant’s servants and agents, and so injured that he died. The plaintiff is his widow, and sues to recover the statutory penalty. The answer denies the alleged negligence of the defendant’s agents, and avers that the deceased came to his death through his own fault and want of care. A trial was had, which resulted in a verdict and judgment for plaintiff. The defendant brings the case here by appeal. On the trial, one of the plaintiff’s witnesses, upon being re-examined upon a matter developed by the cross-examination, was asked: “ Is it not the duty of a car driver, if he saw a wagon or buggy sliding along the track, or cramped in turning off, to stop ? ” The question was objected to by defendant as leading and incompetent. The objection was overruled, and the witness answered in the affirmative. This action of the court is urged as a reason for reversing the judgment, although not specified in the assignment of errors. The question was leading, but leading questions are sometimes permissible on a direct examination. When and under what circumstances they are so rests in the sound discretion of the court trying the cause to determine, and its decision is not assignable for error. (1 Greenl. Ev. § 435.) The witness was an experienced car conductor, and the question called for his opinion in regard to the proper manner of managing a street-car under a given state of facts. Whether he was an expert in such sense as to make his opinions testimony, it is not necessary to inquire, [527] since his answer could not have misled the jury or prejudiced the defendant. The testimony was simply useless, for it is not to be supposed that the jury was in any danger of acting upon the idea that street-car drivers were at liberty to run over people who might chance to get entrapped in the railroad track, without staying the progress of the car and giving the other party the opportunity of escape. Complaint is also made of the action of the court in giving and refusing instructions. The instructions given contained correct and appropriate propositions of law, as has repeatedly been decided by this court. Their further consideration is unnecessary. (McKeon v. Citizens’Railw. Co., 42 Mo. 79 ; Morrissey v. Wiggins Ferry Co., ante, 380; Huelsenkamp v. Citizens’ Railw. Co., 37 Mo. 537 ; Meyer v. Pacific R.R. Co., 40 Mo. 151; Liddy v. St. Louis R.R. Co., 40 Mo. 506.) The alleged negligence of the deceased, which is supposed to have contributed to the casualty, in order to defeat the action must have been direct and proximate, and not indirect and remote. This doctrine is established by the foregoing authorities. The defendant’s instruction, which affirmed a contrary view, was properly refused. The jury may have failed in their duty, but there is no error in the action of the court, and the judgment must be affirmed. The other judges concur.