Jones v. St. Louis-San Francisco Ry. Co

• Decision Date: 14 July 1923
• Docket Number: No. 23485.,23485.
• Citation: 253 S.W. 737
• Parties: JONES v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Supreme Court

253 S.W. 737

JONES v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 23485.

Supreme Court of Missouri, Division No. 2.

July 14, 1923.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

Action by William Jones, an infant, by Frank J. Jones, next friend, against the St. Louis-San Francisco Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Arthur Stahl and Earl M. Pirkey, both of St. Louis, for appellant.

W. F. Evans, E. T. Miller, and A. P. Stewart, all of St. Louis, for respondent.

WHITE, J.

An action for personal injuries. The plaintiff claims that at Crystal City, Mo., July 17, 1917, he was knocked off a freight train of the defendant by a brakeman striking him with a stick, in consequence of which he fell under the train and his foot was crushed. On a former trial there was a verdict for the plaintiff, which, on appeal to this court, was reversed, and the cause remanded. On a second trial there was a verdict and judgment for the defendant, and the plaintiff appealed. The facts in the case are stated in the opinion of this court on a former trial (287 Mo. 64, 228 S. W. 780), and need not be repeated here.

I. Appellant complains of the giving of instruction No. 6 on behalf of the defendant, as follows:

"The court instructs the jury that the evidence of the absent witnesses read to you from the bill of exceptions filed on the former trial of this cause should be considered by you as if such witnesses were present and examined in open court on the present trial, and such evidence is entitled to and should be given the same weight and credit that you would give it if said witnesses were personally present and testified to the same facts before you."

It is argued that this instruction directs the jury to perform an impossibility in attempting to give to the testimony of the witnesses read from a bill of exceptions the "same weight and credit" they would give it if the witnesses were in court and testifying; if the witnesses were present the jury would have the benefit of their personal appearance, their demeanor, and such elements as would enable them better to determine the weight and credit to be given what they say than would be possible from the mere letter of their statement as read. On the former hearing of this case, where the facts sworn to as the evidence of an absent witness were read from an affidavit for a continuance, it was held that it was error to refuse an instruction directing the jury to give it the same weight and credit as it would give the witness if personally present. 287 Mo. loc. cit. 80, 228 S. W. 780.

Several cases have arisen in this court in which it has been held that an instruction in relation to evidence read from an overruled application for a continuance should not in any way be restricted. Elsner v. Supreme Lodge, 98 Mo. 640, 11 S. W. 991; Dry Goods Co. v. McLaughlin, 78 Mo. App. loc. cit. 578. The appellant attempts to draw a distinction between evidence read from such an application and evidence read from a deposition or bill of exceptions. The statute makes no distinction in favor of the former. Section 1390, R. S. 1919, provides, when an application for a continuance on account of an absent witness is overruled, if "the opposite party will admit that the witness, if present, would swear to the facts set out in the said affidavit, * * * the party moving therefor shall read as the evidence of such witness the facts so stated in the affidavit." Under section 5401, R. S. 1919, testimony read from bill of exceptions shall have like effect as testimony preserved in a deposition, and under section 5467 depositions "may be read and used as evidence in the cause in which they shall have been taken as if the witnesses were present and examined in open court."

The language in section 5467 indicates that the Legislature intended to make impressive the direction to, give the evidence read from a deposition, as far as possible, the same effect as it would have in case the witness were present and testifying.

It is argued, however, that the reading of the facts stated in the application for continuance is compulsory. It is put, therefore, upon a different footing. While the statute says that the moving party "shall read" the facts stated in the application for a continuance, the word "shall" in that connection merely means "may." The applicant does not have to read it. It is simply made competent evidence, just as is the evidence preserved in the bill of exceptions. The party desiring to produce such evidence is in exactly the same condition in the one case as in the other. He may or may not read it, as he sees fit. Of course, the courts have been particularly careful to instruct on the value of evidence read from an application for a continuance, because of the danger of getting before the jury facts relating to the refusal of the application and the compulsion under which the opposing party was obliged to admit the evidence. That, however, does not alter the quality and the character of the evidence; the necessity of its proper consideration is no more compelling than in the case of evidence offered by deposition.

Of course it may be said, as a speculative argument, that a jury cannot give the "same weight and credit" to the statement of an absent witness read to them as they could give to the testimony of the witness before them. The personality of the witness is an important element, as every trial lawyer knows. The direction in the instruction in that respect is not strictly accurate. What is required of the jury is that they shall give the evidence the same serious consideration, and endeavor, so far as possible, to weigh it for what it is worth. The use of the words "same weight and credit" in the instruction is not to be commended, and yet we do not regard it as reversible error because the jury was not likely to be misled by the words.

The Springfield Court of Appeals, in the case of Anderson v. White, 210 Mo. App. loc. cit. 282, 235 S. W. 834, made a distinction between the reading of facts stated in an application for a continuance and facts read from a deposition or bill of exceptions, and held an instruction almost exactly like the one under consideration to be error. However, the St. Louis Court of Appeals in case of Dry Goods Co. v. McLaughlin, 78 Mo. App. loc. cit. 584, held that the statement in the application for continuance should be given the same weight and probative force as evidence read from a deposition.

II. Error is assigned to the exclusion of the testimony of one T. P. Williams, which was read in rebuttal and then stricken out on motion of the defendant. Williams swore that the plaintiff, while at the depot after he was hurt, had told him how the accident occurred. This evidence did not tend to corroborate the plaintiff's evidence as to how he was hurt; it also gave an explanation different from that which the defendant's witnesses had testified to as to how the plaintiff had explained it in the doctor's office, where he was taken immediately after the injury. The witness Williams was not at the doctor's office, and did not testify as to what occurred there; his testimony related to a statement made by the plaintiff at the depot. No other...