10 S.W. 58 (Mo. 1888), Leahey v. Cass Avenue & Fair Grounds Railway Co.

Citation:10 S.W. 58, 97 Mo. 165
Opinion Judge:Black, J.
Party Name:Leahey v. Cass Avenue & Fair Grounds Railway Company, Appellant
Attorney:Leonard Wilcox for appellant. J. F. Merryman for respondent.
Judge Panel:Black, J. Ray, C. J., absent.
Case Date:December 20, 1888
Court:Supreme Court of Missouri
 
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Page 58

10 S.W. 58 (Mo. 1888)

97 Mo. 165

Leahey

v.

Cass Avenue & Fair Grounds Railway Company, Appellant

Supreme Court of Missouri

December 20, 1888

Appeal from St. Louis City Circuit Court. -- Hon. G. W. Lubke, Judge.

Reversed and remanded.

Leonard Wilcox for appellant.

(1) It was error to permit Dr. Miller, James Keating, Maggie Keating, and each of them, to testify to statements and declarations made by James O'Neil after he had been carried into Keating's house. State v. Rider, 90 Mo. 62; Waldele v. Railroad, 95 N.Y. 278; Martin v. Railroad, 103 N.Y. 629; Railroad v. O'Brien, 119 U.S. 106; Merkel v. Bennington, 58 Mich. 162; Railroad v. Mara, 26 Ohio St. 185, 190; Armil v. Railroad, 70 Iowa 130; Rogers v. McCune, 19 Mo. 558; Kelly v. Railroad, 88 Mo. 534; Adams v. Railroad, 74 Mo. 556; 1 Wharton on Ev. (3 Ed.) secs. 259, 265; Williamson v. Railroad, 144 Mass. 148. (2) It was error to permit Callahan and Dyas to testify what deceased said after the accident was over and a crowd had gathered and as he was being carried away from the place of the accident, and in overruling defendant's motion to strike out one of Callahan's answers on this point. State v. Rider, 90 Mo. 62; Martin v. Railroad, 103 N.Y. 629; Railroad v. Mara, 26 Ohio St. 185, 190; Kelly v. Railroad, 88 Mo. 534. (3) It was error to overrule defendant's motion to strike out Callahan's statement that he heard a woman shout "murder," and defendant's objection to the question asked same witness "whether he heard anything else said or any cry made besides the declaration of the boy that he had been kicked off the car," his answer to which was a repetition of the statement. State v. Sneed, 88 Mo. 138, 142; Railroad v. O'Brien, 119 U.S. 105. (4) It was error to permit officer Morgan to testify what the driver of the car said to him three days after the accident, and to permit the driver to be asked if he made said statements. Sherman v. Railroad, 106 N.Y. 542; Leavy v. Dearborn, 19 N.H. 355, 356; People v. Buddensieck, 4 N.Y. 230, 264; Kelly v. Railroad, 88 Mo. 537, 540, 548; McDermott v. Railroad, 87 Mo. 299.

J. F. Merryman for respondent.

(1) The testimony of officer Callihan and conductor Dyas as to the statement of deceased made within a minute or a minute and a half after the accident; of James Keating and Maggie Keating of declarations made within five minutes after the accident; of Dr. Miller of statements and declarations made within fifteen minutes -- all to the effect that the driver kicked deceased off the car, are admissible as part of the res gestae. Brownell v. Railroad, 47 Mo. 239; State v. Sloan, 47 Mo. 611; Harriman v. Stowe, 57 Mo. 96; Entwhistle v. Feighner, 60 Mo. 215; Stockman v. Railroad, 15 Mo.App. 515; State v. Banks, 10 Mo.App. 115; 1 Greenl. on Ev. sec. 108; Ins. Co. v. Mosley, 8 Wall. 397; Com. v. McPike, 3 Cush. 181; Newton v. Ins. Co., 2 Dillon, 154; Mitchum v. State, 11 Ga. 627; Starkie on Ev. 88-89; 1 Taylor on Ev. secs. 521-525. (2) The statement of officer Callihan that he heard a woman shout "murder" at the time the accident occurred was admissible. (3) The testimony of officer Morgan that Jessop, the driver, stated to him three days after the accident, when they were in the hoodlum wagon on their road to the Four Courts, that he did not kick the deceased off the car, but "closed the gate on him," was competent and relevant, not as part of the res gestae, but by way of impeachment.

Black, J. Ray, C. J., absent.

OPINION

[97 Mo. 167] Black, J.

This is an action to recover statutory damages for the death of James O'Neil, a boy eleven years of age, and the son of the plaintiff. The defendant corporation owns...

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