Hutchins v. Missouri Pac. Ry. Co.

• Decision Date: 05 January 1903
• Citation: 71 S.W. 473,97 Mo. App. 548
• Parties: HUTCHINS v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

71 S.W. 473

97 Mo. App. 548

HUTCHINS v. MISSOURI PAC. RY. CO.

Court of Appeals at Kansas City, Missouri.

January 5, 1903.

RAILROADS — FIRES — EVIDENCE — ADMISSIBILITY —STATEMENTS OF WIFE—IMPEACHING TESTIMONY—REPETITION OF QUESTION —INSTRUCTIONS — REPETITION—ISSUES NOT IN RECORD.

1. In an action to recover for a fire claimed to have been caused by the negligence of a railway company, it was not proper for defendant, for the purpose of impeaching plaintiff, to elicit from him testimony as to what his wife said in his presence in regard to the cause of the fire, since any statements by her were inadmissible for or against him.

2. For the same reason it was not error to refuse to permit another witness to state what she heard plaintiff's wife say in regard to the cause of the fire.

3. Failure to state that an offer to read a former written statement of a witness was made for the purpose of contradicting him warranted refusal of the offer.

4. Defendant could not complain, though its offer to read a former written statement of one of plaintiff's witnesses was first refused, where permission was afterwards given to read it as part of the evidence of the witness.

5. Where a witness under cross-examination as to former statements made by him had already answered a certain question, it was not error to refuse to permit him to answer a repetition of the question, though the objection thereto on the grounds of incompetency, irrelevancy, and immateriality may not have been well taken.

6. In an action to recover for a fire claimed to have been caused by the negligence of a railway company, the issue being as to what started the fire, and a witness for plaintiff having answered a question on cross-examination as to where he was at a time considerably after the starting of the fire, it was not error to refuse a question as to what the witness had formerly said in regard to the same immaterial matter.

7. An instruction that the damages, if any, recoverable against a railway company for a fire, should be assessed at "such a sum as the evidence shows to have been the value," etc., was not erroneous, as instructing the jury to base their damages on the evidence, regardless of their judgment as to its credibility.

8. A cause will not be reversed for a failure to give a proper instruction on issues which do not appear in the record on appeal.

9. A cause will not be reversed for the refusal to give a proper instruction, where other instructions to the same effect were given.

Appeal from circuit court, Lafayette county; Sam'l Davis, Judge.

Action by John M. Hutchins against the Missouri Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

M. L. Clardy and W. S. Shirk, for appellant. Blackwell & Son and Alexander Graves, for respondent.

BROADDUS, J.

Plaintiff's cause of action is based upon defendant's liability for damages he claims to have sustained in the loss of his barn and its contents, alleged to have been destroyed by fire on December 5, 1900, said fire being caused by the emission of sparks from one of defendant's engines while being operated over its railroad. It is admitted by appellant that there was evidence tending to prove plaintiff's case, but it is insisted that, but for the errors of the court in rejecting competent evidence and a proper instruction offered by the defendant, and the giving of an improper instruction, and in admitting incompetent evidence on the part of the plaintiff, the verdict would have been for the defendant, and not for the plaintiff. The appellant's abstract is made upon detached parts of the evidence, and, while respondent has filed an additional abstract for the purpose of supplying certain defects in that of appellant, the record remains in an incomplete condition, so far as the testimony is concerned. However, we gather from what is before us that on the night of the day in question plaintiff's said barn, with its contents, were destroyed by fire; that appellant's east-bound passenger train passed the barn, emitting sparks from its engine; and that in a short time thereafter the barn was discovered to be on fire in the roof on the side next to appellant's railroad tracks, some of the witnesses testifying that the time between the two events did not exceed 20 minutes, and others not more than 5 minutes.

The respondent, while testifying, was asked by appellant if, during the progress of the fire, his wife did not say to some other woman in the presence of respondent that Kit Lewis, a witness in the case, had set fire to the barn with his pipe, to which question the respondent answered "No." The court, upon motion of respondent, struck the evidence from the record. The appellant claims that this was error, as it operated to prevent the impeachment of respondent's evidence by showing by other witnesses that his wife did make the statement in his presence. The...