Hauff & Stormo v. South Dakota Central Railway Co.

WHITING, J.

While I concur in the conclusion that the judgments and orders appealed from should be reversed, in the view -that it was reversible error to sustain the objections interposed to the questions asked the witness Hauff, and in the bolding as to the rule of law relating to the relative value and iorice of affirmative and negative testimony, y.et I am forced to dissent from the statement that this court is bound to assume “that the employees of defendant failed to blow the whistle or ring the bell as the. cars approached the crossing where the accident occurred.” Conceding that ordinarily the negative testimony of one who swears that he attempted., to- ascertain the happening or non happening of a certain thing, is entitled to the consideration of the jury upon the question of whether such thing did happen, yet Stormo’s'testimony that -he 'heard no whistle nor bell was entitled to no consideration whatsoever as- proof that the whistle did not blow nor the bell ring for the reason that 'he swore he heard no whistle whatsoever and it stands conceded by three of plaintiff’s own witnesses 'that the danger whistle did- blow. The'only effect of Stormo’s testimony on this point should have been to discredit him before the jury when it came to consider his testimony that he did not see the engine and cars 'approaching. That Stormo was knowingly and un-*198excusedly attempting to beat -the engine and car to the crossing is too 'apparent for any question to arise 'thereon.

POLDEY, J. I concur in the views expressed by Whiting, J.