I respectfully dissent from that part of the principal opinion which holds the testimony of the witnesses Forquer, Easley and Sleath was competent and properly admitted by the trial court over appellant's objections and exceptions.
The undisputed evidence was that the deceased Moran lacked only a very little — one witness said about eight inches — of being in the clear when he was struck. It was the respondent's contention that the engineer, by a reasonably prompt application of the emergency brakes after seeing Moran in a perilous position, could have checked the speed of the train sufficiently to have saved him. The question narrows down to a matter of inches and a measure of time infinitesimally small. In other words, even though the jury might have *Page 296 believed the arrival of the train at the point of collision could not have been delayed more than a fraction of a second or by a distance exceeding a few feet, let us say, yet, if there was evidence tending to show its advance could have been retarded that much the respondent could hold the appellant responsible. The jury found for her and it may have been on that ground.
In maintaining the affirmative of the issue the respondent presented the three lay witnesses Forquer, Easley and Sleath, who said that in July and August, 1927, some eight months after Moran was struck and killed at Rutledge, they observed the same train — that is a passenger train bearing the same number and running on the same schedule — make ordinary service stops on three occasions, once at the station of La Plata and twice at Hurdland, in a distance of 600 or 700 feet. The appellant objected repeatedly that the conditions existing when the witnesses made these observations were not shown to have been sufficiently similar to the conditions existing when Moran was killed, to make the evidence competent and material; but the court overruled the objections.
[1] The law is well established that when a party seeks to make proof of his case by introducing evidence of experiments or independent similar occurrences, not only must he show the causal conditions and circumstances of the event under investigation were substantially reproduced in the experiments or similar occurrences, 22 C.J. secs. 840, 842, pp. 751, 755; James v. Bailey Reynolds Chandelier Co., 325 Mo. 1054, 1071,30 S.W.2d 118, 124; but the evidence must also be of such character and clarity as will assist the jury to an intelligent determination of the real issues of fact in the case before it. [22 C.J. secs. 843, 852, pp. 755, 758.] Considerations of what has been called "collateral inconvenience" or "auxiliary policy" enter in. 1 Greenleaf on Evidence (16 Ed.) secs 14-a, 14-v, pp. 37, 83: 1 Wigmore on Evidence (2 Ed.) secs. 42, 443, pp. 260, 784. [2] Such evidence draws collateral issues into the case and sometimes may confuse the jury, lead them aside, and impede the trial even though it possesses a remote, indefinite relevancy. [3] The burden is on the party who offers the evidence to show its competency, and it is the duty of the court to determine its admissibility. [22 C.J. secs. 844, 852, pp. 756, 758.]
There was testimony that the same kind of equipment had been in use on train 22 from the time Moran was killed until the date of the witnesses' observations — that is the type of engines, cars, brakes, etc. It was also shown the weather was clear and the rails dry on all four occasions; and that the track at the three stations named was similar in gradient and footage of straight track. So there was a sufficient similarity of conditions in these particulars. *Page 297
[4] But beyond that the facts are not necessarily parallel. One set of witnesses who saw the train that struck Moran estimated its speed when the engineer first saw him at forty to forty-five miles. The three witnesses, Forquer, et al., who made the observations at La Plata and Hurdland estimated the speed of the trains they saw at the same figures, forty to forty-five miles per hour. But assuming all these witnesses would gauge the speed alike yet there is a spread in their estimates of five miles per hour, or 7 1/3 feet per second, which might represent the difference between safety and disaster in the effective operation of the emergency brakes in a case as close as this.
Furthermore, the methods employed by the three witnesses in estimating the distance within which the trains they were watching came to a stop, were the crudest approximations so far as they described them. Their procedure on one of these occasions was as follows. Starting from the point where the engine customarily stopped at the station they paced off a distance of 1200 feet to their observation point. Standing there they noted the brakes were "applied" when about half the train's length had passed. Deducting that estimated half train length from the 1200 feet gave a distance of 675 feet if the engine stopped that day where it usually did and their measurements and estimates were accurate. But they did not say the brakes were hanging loose before they were "applied," which was the fact on the occasion when Moran was killed, whereas the appellant's engineer said, and there was no evidence to the contrary, that in making a service stop a light application of the air is made a long way in advance, which, of course, would take up the slack and make the brakes respond more promptly.
Beyond all this, the train that struck Moran had eight cars and was making an emergency stop, whereas the trains the witnesses observed at La Plata and Hurdland had eleven and fourteen cars and were making service stops. Now, how does the fact that eleven and fourteen-car trains made service stops in 700 feet or less, have any tendency to prove the distance in which an eight-car train ought to have made an emergency stop?
The respondent contends the two sets of facts can be reduced to a common denominator in this way. The appellant's engineer on cross-examination testified the longer the train the quicker it would stop, because of the added braking power. He said an eight-car train will run about 100 feet further than a fourteen-car train when the emergency brakes are applied. Respondent argues thus: the evidence shows an emergency stop can be made in less distance than a service stop; since the two fourteen-car trains were seen to make service stops in 600 or 700 feet, it consequently stands proven they would have stopped in less distance than that if the emergency *Page 298 brakes had been applied; an eight-car train will run about 100 feet further than a fourteen-car train when the emergency brakes are applied; therefore, an eight-car train will stop under an emergency application in about 100 feet more than some unnamed distance less than 600 or 700 feet, which means in less than 700 or 800 feet; from all of which the jury were entitled to infer that the train at Rutledge could have been slowed up sufficiently to have avoided striking Moran.
In the opinion of the writer occurrences so dissimilar in their essential facts cannot be made competent merely because they may by such an intricate course of reasoning be given a vague relevancy to the issues on trial. But further than that, there was no evidence that a train will make an emergency stop in someunnamed distance less than a service stop. The evidence was definite on that point. The only two witnesses who testified concerning it were the appellant's engineer and fireman. They said on cross-examination an emergency stop requires one-thirdless distance than a service stop; and the engineer in another part of his cross-examination contradicted himself and said an emergency stop required one-third of the distance used in a service stop.
In her brief, in discussing the demurrer to her evidence the respondent twice refers to and adopts this statement of appellant's engineer's that an emergency stop requires one-third of the distance necessary for a service stop, and she points out that one-third of a half mile is 880 feet. That ratio applied to the testimony of her witnesses Forquer, Easley and Sleath, who say they saw three eleven and fourteen-car trains travelling forty to forty-five miles per hour make service stops in 600 to 700 feet, would fix the distance in which the same trains would have made emergency stops at 200 to 233 feet, seventy-five yards or three car-lengths — a distance so short we would doubtless be justified in holding the testimony in conflict with physical laws. [Highfill v. Wells (Mo. Sup.), 16 S.W.2d 100, 103.]
But, having taken that position and adopted that ratio for one part of her case, respondent ought not to be permitted to change theories in attempting to connect up the testimony of the three witnesses mentioned by asserting an emergency stop requires some indefinite, unnamed distance less than a service stop. Even in resorting to the testimony of an adversary witness to help out her case she must be consistent. [Gann v. C.R.I. P. Ry. Co.,319 Mo. 214, 228, 6 S.W.2d 39, 44, and cases cited.]
To sum up, the distance within which the train ought to have made an emergency stop at Rutledge was a vital issue. The deceased lacked only eight inches of being in the clear, and the question figures down to a knife edge. Three lay witnesses were introduced *Page 299 who said they saw other trains of different lengths, at different times of the year and at different places, traveling "about" forty to forty-five miles per hour make a different kind of stop in "about" 600 or 700 feet. A fourteen-car train would be at least 1050 feet long exclusive of the engine, so this testimony amounts to a statement that these two trains traveling at high speed made service stops in less than six or seven-tenths of their length. Train speeds and distance were estimated except that the witnesses paced off the distance from the place where the engine usually stopped to the point where they made their observations. Then we are asked to apply that testimony to the accident, through the medium of admissions of appellant's engineer and fireman, which must be taken one way to harmonize with respondent's side of the case on one issue, and another way to harmonize with her version on another issue.
To say this controversy and indirection over a collateral matter, wholly outside the event under investigation, was helpful in determining the actual issues of fact in the case, seems to the writer to be going much too far. In my view it was prejudicial and led the jury afield. If this is correct, the evidence was improperly admitted and the judgment should be reversed and the cause remanded. Henwood and Ragland, JJ., concur.