Missouri Pac. Ry. Co. v. McCally
Decision Date | 05 January 1889 |
Citation | 41 Kan. 655,21 P. 574 |
Parties | THE MISSOURI PACIFIC RAILWAY COMPANY v. F. M. MCCALLY, as Administrator of the estate of Dexter F. McCally, deceased |
Court | Kansas Supreme Court |
[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Motion for Rehearing.
THE facts are stated in Mo. Pac. Rly. Co. v. McCally, just decided, and in the opinion herein, filed on May 10, 1889.
A motion has been filed for a rehearing of this case, and for a reconsideration of the matters heretofore presented. It is urged that the opinion ignores several vital, important and controlling questions contained in the record and discussed in the original briefs. The matters most forcibly presented in support of the rehearing refer to testimony of certain witnesses concerning conversations had between themselves and Henry Snyder, the engineer, after the accident occurred, and the testimony of James Calloway, that in his opinion the pilot of the engine was the proper place for Dexter F. McCally to be at the time of the accident. The statements of Snyder after the accident were incompetent, being hearsay testimony only. (Rly. Co. v. Pointer, 9 Kan. 620.) The only statements or conversations with Snyder which in any way tended to prove that he was negligent in running or operating the train were as follows. James Calloway testified:
Again, W. T. Harrell testified:
Unless it can be said from the record that this incompetent testimony was not prejudicial to the rights of the railway company, its admission would cause a reversal of the judgment. We think, however, that an examination of the whole record shows that this testimony was not prejudicial or injurious. In the case of Railway Co. v. Pointer, supra, the hearsay testimony of Hamilton, the engineer, which occurred after the accident, was introduced by Pointer to show the negligence of Hamilton in running his train, after Pointer had called Hamilton as a witness to testify in his behalf. Hamilton's attention was not called to such conversation when on the stand. In this case Snyder was a witness produced by the railway company; and although the objectionable testimony was not offered as evidence to impeach him, yet he had full opportunity to deny the statements attributed, and he made as a witness, full and complete denial thereof. But, further than this, the evidence of Snyder clearly established his negligence in the running or operating of his engine. He testified among other things as follows:
The fireman, then, occupies the left-hand side? A. Yes.
He was subsequently asked if he saw any signal after that from the top of the box car. He answered: "No, sir, I did not see any signal; the only signal I got was from the fireman."
" A. Yes, sir.
You say it takes but very little wind to blow the sand away? A. No, sir, it don't take a great deal.
This testimony of Snyder clearly convicts him, as stated in...
To continue reading
Request your trial-
Baillod v. The Nelson Grain Company
... ... SYLLABUS ... SYLLABUS ... BY THE COURT ... 1 ... MISSOURI FACTORY ACT--Personal Injuries--Competent Evidence ... A statute of Missouri provides that: "The ... 477, ... 138 P. 621. Similar evidence was discussed in Mo. P ... Rly. Co. v. McCally, 41 Kan. 639, 649, 21 P. 574, 41 ... Kan. 655 ... It was ... held in Mo. P. Rly ... ...
-
Johnson v. The McLain Investment Company
... ... 98; Dodge ... v. Childs, 38 Kan. 526, 529, 16 P. 815; Mo. P ... Rly. Co. v. McCally, 41 Kan. 655, 21 P. 574; ... Coal Co. v. Dickson, 55 Kan. 62, 70, 39 P. 691; ... Mo. P. Rly. Co ... ...
-
Carrier v. The Union Pacific Railway Company
... ... Co. v. Evansich, 61 Tex. 3.) ... The ... case of Mo. P. Rly. v. McCally, 41 Kan ... 639, 21 P. 574, 41 Kan. 655, is cited by counsel for ... plaintiff in error as ... ...
-
Mulhall v. Mulhall
...denied and the supreme court held that the case should be considered as if the proper amendment had been made. ¶21 In Missouri Pacific Railway Co. v. McCally, 41 Kan. 639, 41 Kan. 655, 21 P. 574, the action was brought for personal injuries to a brakeman occasioned by the negligence of the ......