Garrett v. St. Louis Transit Company
| Decision Date | 31 March 1909 |
| Citation | 118 S.W. 68,219 Mo. 65 |
| Parties | ANNIE GARRETT, Appellant, v. ST. LOUIS TRANSIT COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel G. Taylor Judge.
Affirmed.
Lyon & Swarts and Dwight D. Currie for appellant.
(1) That part of the deposition of H. B. Crady which shows what efforts defendant made to secure his testimony and what inducements or threats were made was an admission upon the part of defendant and should have been admitted. Snell v Bray, 56 Wis. 156; Cruikshank v. Gordon, 48 Hun 308. (2) The questions asked H. B. Crady in regard to his testimony before the coroner's inquest and the answers thereto contradict the testimony that he had given in his deposition, showed that he had made outside of court statements inconsistent with his testimony and were admissions against him; and the fact that this testimony was given before a coroner's jury does not render it inadmissible. 30 Am. & Eng. Enc. of Law, 1108; State v Gattin, 170 Mo. 371; Mulville v. Ins. Co., 19 Mont. 101; Wren's Admr. v. Railroad, 20 S.W. 215; N. Y., P. & N. v. Kellam's Admr., 83 Va. 851; Maxwell v. Railroad, 1 Marv. 205; Ice Machine Co. v. Keifer, 134 Ill. 493; Knights Templars v. Crayton, 209 Ill. 563; Cox v. Railroad, 92 Ill. 19; Bartlett v. Lewis, 12 C. B. N. S. 263; 3 Wigmore on Evidence, sec. 2268; Sullivan v. Railroad, 133 Mo. 1. (3) Instructions 8, 10 and 12, given by the court of its own motion, were improper and prejudicial to plaintiff.
Boyle & Priest and G. T. Priest for respondent.
(1) The fact that defendant wrote a letter requesting the witness to return to this city and give his testimony is not an admission of any material fact which would go to establish liability or guilt against defendants or that would even tend to fix guilt or liability upon them, and that is the only theory upon which the testimony could be introduced, as an admission against interests. If such evidence be an admission against defendant, then it was properly excluded, as it was not the best evidence, it being merely a statement as to the contents of the letter. The letter itself was the best evidence. It was not shown that the person who wrote the letter had the authority to make any admissions on behalf of defendant; in fact, the testimony does not disclose quite clearly as to who was the author of the letter. Koenig v. Railroad, 173 Mo. 721. (2) Plaintiff complains of the action of the trial court in refusing to allow them to interrogate Crady, the conductor of the car, concerning his (Crady's) refusal to answer certain questions put to him at the coroner's inquest relative to the death of deceased; Crady refused to answer on the ground that his testimony would incriminate him. This identical question has been decided quite recently in Masterson v. Railroad, 204 Mo. 523. (3) Counsel for plaintiff complain of instruction 8 because it injects into the case an immaterial issue, and, therefore, they say, confused the jury. The instruction submits to the jury the question of whether or not deceased was a passenger. Plaintiff's petition alleges that deceased was a passenger, and grounds her right to recovery upon that fact. Defendant's answer was a general denial, and, therefore, an issue was made as to whether or not deceased was a passenger on the car in question. Counsel for plaintiff further complain of the instruction because they say it tells the jury that if they believe deceased was not a passenger then defendants' conductor had the right to eject him in any manner he saw fit, even to the unwarranted injury of the deceased. Upon reading the instruction, we are unable to discover any such language in it. (4) Instruction 10 tells the jury that if they believe that Garrett voluntarily assaulted the conductor and received his injuries at the hands of the conductor while defending himself, then the company is not liable; in other words, that the fight between deceased and conductor was an affair between man and man with which the company had nothing to do. O'Brien v. Railroad, 185 Mo. 269.
The plaintiff filed this suit in the circuit court of the city of St. Louis on April 8, 1904, against the defendant, for the recovery of $ 5,000 damages for the alleged wrongful killing of her husband, John Garrett, on the 28th day of March, 1904, by one of defendant's conductors, in charge of a car on the Olive Street line, while attempting to eject Garrett for the alleged failure to pay his fare.
The petition was in three counts, and a trial was had thereon before the court and a jury, which resulted in a verdict and judgment for defendant; and the court refusing a new trial, the cause was brought here by the plaintiff for review.
The first count of the amended petition was as follows:
"That on the 28th day of March 1904, the plaintiff's said husband, John Garrett, entered and was received by the defendants as a passenger on an eastbound car of the defendants' on the said Olive street, at Beaumont street, on their said line of street railroad; that while the plaintiff's said husband was riding on said car on the rear platform thereof, and while said car was running at a rapid rate of speed on the said Olive street, between Jefferson avenue and Twenty-third street, the defendants' conductor, in charge of their said car, and whilst running, conducting and managing said car as the agent, servant and employee of the defendants, wrongfully and forcibly attempted to eject the plaintiff's husband from said car, and in so doing caused the plaintiff's said husband to fall from said car while said car was in rapid motion and to strike the street with great force and violence, whereby the plaintiff's said husband sustained injuries from which he died in the said city of St. Louis on the thirtieth day of March, 1904, and within six months prior to the commencement of this action; that said acts of the defendants' said conductor in attempting to eject the plaintiff's said husband from said car and in causing him to fall therefrom, were done negligently and with criminal intent, and that the injuries sustained by the plaintiff's said husband and from which he died as aforesaid, resulted from, and were occasioned by, said negligence and criminal intent of the defendants' said agent, servant and employee, to-wit, the conductor aforesaid, whilst running, conducting and managing the defendants' said car; and that by reason of the death of the plaintiff's said husband, caused as aforesaid, an action has accrued to the plaintiff to sue for and recover from the defendants the sum of five thousand dollars.
"Wherefore, the plaintiff prays judgment," etc.
The second count is the same as the first with the exception that it charges that the wrongful acts complained of and which resulted in the death of plaintiff's husband were done negligently. The third count is also the same as the first with the exception that it charges that the wrongful acts of the conductor of defendants which resulted in the death of plaintiff's husband, were done with criminal intent.
The answer of defendant St. Louis Transit Company, omitting formal parts, is as follows:
The answer of the defendant, United Railways Company of St. Louis, is a general denial.
Plaintiff's evidence tended to prove that, at the time of the injury and death of John Garrett, he and plaintiff were husband and wife, and that he died of the injuries received, at the City Hospital in the city of St. Louis, on March 30, 1904.
On the 28th of the same month, about 6 o'clock p. m., John Garrett boarded an east-bound Olive street car at Beaumont street, and stood on the steps of the rear platform of the car. What occurred after the car reached Jefferson and Olive streets, the point where the injury occurred, is well told in the language of plaintiff's witnesses, as substantially stated in appellant's abstract of the record, which is as follows:
Direct Examination: Mrs. Hannah Williams testified that she was a laundress, living in St. Louis. That she was acquainted with John Garrett. That on March 28th, 1904, and six p. m., she boarded an east-bound Olive street car at Sarah and Olive streets, intending to get off at Jefferson and Olive streets. When the car reached Beaumont and Olive streets John Garrett boarded it. When the car reached Jefferson and Olive it stopped on the east side of Jefferson and witness got off when she came out of the door of the car to get off Garrett was standing on the rear of the back platform,...
To continue reading
Request your trial