Kersten v. Hines,
Decision Date | 19 June 1920 |
Docket Number | No. 21593.,21593. |
Citation | 223 S.W. 586,283 Mo. 623 |
Parties | KERSTEN v. HINES, Director General of Railroads. |
Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.
Action by Stephen Kersten, an infant, by Jacob Kersten, his next friend, against Walker D. Hines, Director General of Railroads under the United States Railroad Administration. Verdict for plaintiff, and from an order granting a new trial he appeals. Reversed and remanded, with directions.
Sidney Thorne Able and Charles P. Noell, both of St. Louis, for appellant.
James F. Green and H. H. Larimore, both of St. Louis, for respondent.
This is an appeal from an order granting a new trial in an action for injuries to Stephen Kersten, a minor. The injury occurred February 1, 1918, and the action was begun May 17, 1918. The trial occurred in 1919. The boy lost both legs and was otherwise injured. The motion for new trial was sustained on the ground that certain remarks of counsel during the trial constituted error. The facts in connection with the several questions discussed are subsequently stated.
I. The motion for new trial was sustained "because of the action of counsel for plaintiff in making statements on the trial in the presence and hearing of the jury intimating emphatically that the report made by Officer Coyle, introduced in evidence, and the signature thereof, were not genuine."
In order that this ruling may be understood, it is necessary to set out the facts which gave rise to it. Coyle's deposition had been taken by respondent on August 10, 1918, at the Marine Barracks, near Paoli, Pa. In that deposition Coyle testified that on February 1, 1918, the date appellant was injured, he was a member of the St. Louis police force, assigned to the fifth district ; that about 4:30 p. m. on February 1, 1918, he arrived with the ambulance at the watchman's shanty at the corner of Main and Brooklyn streets, in St. Louis, and there saw appellant for the first time; that he placed appellant in the ambulance, and conveyed him to the city hospital.
Coyle testified his duty was to secure all the witnesses possible; that he attempted to do so, but was unable to find any one who had seen the accident; that he had no personal knowledge; was at the police station when the accident occurred.
On cross-examination Mr. Coyle said the report was made out by the police clerk at the station from notes made by him (Coyle). On the trial this deposition was offered and read in evidence by appellant's counsel.
Respondent's counsel called a police officer to prove the signature of Coyle to a written statement respondent desired to put in evidence. The following then occurred:
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