Scoville v. Hannibal & St. Joseph R. Co.

• Decision Date: 06 February 1888
• Citation: 6 S.W. 654,94 Mo. 84
• Parties: Scoville v. The Hannibal & St. Joseph Railroad Company, Appellant
• Court: Missouri Supreme Court

6 S.W. 654

94 Mo. 84

Scoville v. The Hannibal & St. Joseph Railroad Company, Appellant

Supreme Court of Missouri

February 6, 1888

Appeal from Livingston Circuit Court. -- Hon. J. M. Davis, Judge.

Reversed and remanded.

Strong & Mosman for appellant.

The court erred in permitting to be read, against objection, the alleged statements of Dr. Loomis at a former trial, from the bill of exceptions. Jaccard v. Anderson, 37 Mo. 94; Morris v. Hammerle, 40 Mo. 490; Donnell v. Byern, 80 Mo. 335; 1 Greenl. Evid., sec. 503.

J. W Boyd for respondent.

The testimony of Loomis in former bill of exceptions was properly admitted in evidence on the last trial. Franklin v Gumersell, 11 Mo.App. 314, and cases cited. Its admission, at least, is not an error for which the judgment should be reversed. It was not material. Tuzzle v Railroad, 62 Mo. 428; Blackwell v. Bailey, 1 Mo.App. 328; 3 Mo.App. 577; R., S. sec. 3775; State ex rel. v. O'Gorman, 79 Mo. 370. Besides the objection to Loomis' testimony was not made on the ground that it was not what he testified to on the former trial. 37 Mo. 94; 80 Mo. 385.

Norton, C. J. Judge Sherwood, absent.

OPINION

Norton, C. J.

This is an action brought by plaintiff to recover damages for the death of her minor son, alleged to have been occasioned by the negligence of defendant, and the case is before us on defendant's appeal from a judgment rendered in favor of plaintiff, and the action of the court in receiving evidence, and in giving and refusing instructions, is assigned for error. The case has once before been in this court, and is reported in 81 Mo. 434, from which it appears that the court, after holding that the facts in evidence warranted the trial court in submitting the case to the jury, reversed the judgment for error committed in giving instructions. On a retrial, the error which led to the reversal of the judgment was avoided, and as to the point ruled upon in the opinion, gave instructions in conformity with the views there expressed. The facts disclosed on the second trial are substantially the same as those commented on in the opinion alluded to, and for that reason, a discussion of them here is unnecessary.

It is assigned for error among other things, that, on the retrial, the court, over the objection of defendant, allowed the following testimony of Dr. Loomis, as preserved in the bill of exceptions taken and filed on the first trial, to be read as evidence, viz: "I reside at Easton, Mo. I knew Horace Scoville, deceased. Saw him immediately after he was killed. There is a platform on the east side of the depot. The street upon which he was killed is immediately east of this platform, and is sixty or seventy feet wide. He was killed about forty feet east of the platform. The platform is ten or fifteen feet out in the street. The depot is on the north side of the railroad track, and the switch is south of the main track. The platform is on the south side of the depot and extends east of it. The crossing for wagons is east of the platform, and the planks on it are about twelve feet wide. I saw Horace Scoville alive about a half hour before he was killed. The first blow he received was on the back part of the head. This was enough to kill him although he had no other injuries. The engine and coal car killed him. The coal car was in front of the engine.

Cross-examined: "I am son-in-law to plaintiff. Deceased at the time of his death was about seventeen years old. His eyesight and hearing were both good. He was in possession of all his faculties, and was a bright boy."

This evidence was objected to as being incompetent and because no sufficient foundation had been laid to authorize its reception. No other foundation was laid for the introduction of this evidence, than the evidence of Loomis' wife, who testified that three years ago Loomis had a stroke of paralysis of the right side, that it was six weeks before he could speak a word, and had never recovered his speech except so far as a little conversation was concerned; that he could neither write nor form sentences; that he could only write the names of people he was familiar with; that he could talk enough sometimes to say sometimes as many as five words that...