18 S.W. 1007 (Mo. 1892), Senn v. Southern Ry. Co.

Citation:18 S.W. 1007, 108 Mo. 142
Opinion Judge:Macfarlane, J.
Party Name:Senn et al. v. The Southern Railway Company, Appellant
Attorney:Lubke & Muench for appellant. Dodge & Mulvihill for respondents.
Case Date:February 02, 1892
Court:Supreme Court of Missouri

Page 1007

18 S.W. 1007 (Mo. 1892)

108 Mo. 142

Senn et al.


The Southern Railway Company, Appellant

Supreme Court of Missouri, Second Division

February 2, 1892

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher, Judge.

Reversed and remanded.

Lubke & Muench for appellant.

(1) The trial court erred in admitting as evidence against defendant the declaration of plaintiff, Christian Senn, as to the cause of the accident, made to the driver after the transaction was complete. The declaration in question was not admissible as being of the res gestae. State v. Snell, 78 Mo. 240; Leahey v. Railroad, 97 Mo. 165. And the witness was not a participant so as to make his declarations evidence. State v. Elkins, 101 Mo. 344. Even if the driver had expressly assented to the declaration, it would still have been incompetent against the company. Adams v. Railroad, 74 Mo. 553. (2) The trial court erred in allowing the clothing of the boy to be shown the jury. Defendant's counsel admitted that the boy was injured by the car of defendant. There was no issue in the case as to which this clothing was relevant testimony, and the flourishing of these garments before the jury was calculated only to excite prejudice against defendant company. A controlling reason why irrelevant evidence is to be excluded is, "that such evidence tends to draw away the minds of the jurors from the point in issue and to excite prejudice and mislead them." 1 Greenl. Ev. [12 Ed.] sec. 52. The improper admission of this irrelevant evidence cannot be deemed harmless. It was intended to and did influence the jury against defendant, especially after the trial judge gave the declaration weight by ruling it into the case. State v. Whelehon, 102 Mo. 18. Admission of improper evidence is presumptively prejudicial. Dayharsh v. Railroad, 103 Mo. 570. (3) The trial court erred in overruling defendant's objections to the city ordinance. First. The city of St. Louis had no power to pass this ordinance. Its powers, specified by the scheme and charter as to the operation of street railways, are: (a) Authority to license, tax and regulate. Scheme and Charter, 5 sub., sec. 26, art. 3; R. S. 1889, p. 2097. (b) Authority to "regulate and control" their "fares, hours and frequency of trips, and the repair of their tracks, and the kind of their rails and vehicles." 11 sub., p. 2099. (c) Authority "to regulate the time and manner of running cars, and the rates of fare, * * * and the sale of tickets, and exchange thereof between the several companies." Scheme and Charter, sec. 2, art. 10; R. S. 1889, p. 2133. Second. The ordinance is illegal, for that it is oppressive and unreasonable, and is not in harmony with the general law of the state which requires only ordinary care. Municipalities are not invested with the powers of sovereignty; their ordinances must be fair and reasonable, otherwise the courts will hold them void. Corrigan v. Gage, 68 Mo. 541; Railroad v. Springfield, 85 Mo. 674; Hannibal v. Tel. Co., 31 Mo.App. 23. (4) The court erred in overruling defendant's objection to the hypothetical question put to witness Kunkel. Gurley v. Railroad, 35 Mo.App. 95; Igo v. Railroad, 38 Mo.App. 377.

Dodge & Mulvihill for respondents.

(1) The trial court did not commit error in admitting in evidence the declaration of Christ. Senn. This was, according to undisputed testimony, only two minutes after the boy had been run over and while he was being picked up, when Charlie, Tommy Bell and the driver were all together, before they had separated or had made any explanation, and right at the scene of the injury. The statement that it was "careless driving" was a spontaneous explanation of the real cause; a verbal act, and really a part of the res gestae, made, too, by one who could, under no circumstances, bind the company. There was no reply. Leahey v. Railroad, 97 Mo. 165, and cases cited; Greenl. Ev. [13 Ed.] sec. 108. (2) There was no error in showing to the jury the clothing worn by Charlie Senn at the time he was injured. There was no admission by counsel for defendant that the deceased was injured by the car of the appellant. The clothes worn showed what part of the body was injured, the size of the boy who wore them and the relative position when injured. The position of the boy as he laid on the track, as testified to by witnesses for the respondents, is borne out by the condition of the clothes worn. There is no difference between showing the clothes worn and showing the injured part. Railroad v. Wood, 113 Ind. 544...

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