Morrissey v. Wiggins Ferry Co.

• Decision Date: 31 March 1871
• Citation: 47 Mo. 521
• Parties: PATRICK MORRISSEY, Respondent, v. WIGGINS FERRY COMPANY, Appellant.
• Court: Missouri Supreme Court

47 Mo. 521

PATRICK MORRISSEY, Respondent,

v.WIGGINS FERRY COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1871.

Appeal from St. Louis Circuit Court.

For the main facts in this case see 43 Mo. 380.

S. N. Holliday, for appellant.

The court erred in excluding the Buffalo depositions offered by defendant. (Childress v. Cutter, 16 Mo. 24.) We understand the rule, as declared in that case, to be that if the country where such registers are kept recognizes them as authentic, they will be admitted here. In New York, where these depositions were taken, entries of baptisms and marriages from church registers are admissible in evidence, independent of any statute declaring them admissible. (Jackson v. King, 5 Cow. 237-8, 241; Maxwell v. Chapman, 8 Barb. 579; Jackson v. Boneham, 12 Johns. 226; Blackburn v. Crawford, 3 Wall. 189; Lewis v. Marshall, 5 Pet. 470; Hyam v. Edwards, 1 Dallas, 2; Lathrop v. Lawson, 10 La. Ann. 238; 10 East, 109; 15 East, 32; Kingston v. Leslie, 10 Serg. & R. 383.) It is not true that only church registers of the established church are received in England. In the old case of Hyam v. Edwards, 1 Dallas, 2, the marriage register and that of births of Quakers were admitted in evidence. That decision has been followed by many others, cited in the cases referred to in East's Reports.Morris & Peabody, for respondent.

The depositions taken at Buffalo, N. Y., were cearly inadmissible. The baptismal entry there mentioned was not required by law to be made. (Mullanphy v. Cutter, 16 Mo. 24, 45; Haile v. Palmer, 5 Mo. 403, 417; Richmond v. Patterson, 3 Ohio, 368; Erickson v. Smith, 38 How. Pr. 454.) In the absence of proof to the contrary, the law of New York as to this question is presumed to be the common law. There is no legal presumption that the statute law of that State is the same as our own. (Whitford v. The Panama R.R. Co., 23 N. Y. 465.)

The entry in question was not properly proved: 1. Because the original entry was not produced. 2. Because a person other than he who purported to have made said entry testified to its contents. 3. Because the signature or handwriting of the person who purported to have made said entry was not proved. 4. Because, at the time the witness swore to the contents of the entry, there was no evidence that the person who purported to have made it was dead. The party who made the entry must testify to it if not proved to be dead. (Merrill v. Ithaca & Oswego R R., 16 Wend. 595; Brewster v. Doane et al., 2 Hill, 537; Wilbur v. Selden, 6 Cow. 162.) 5. Because there was no legal and competent evidence that the person who purported to have made said entry was dead. After the witness testified to the contents of the entry, he further testified that the person who purported to have made it was reputed to be dead. Death can not be proved by reputation except under particular circumstances, which were not proved to exist in this case. (Steward v. Stephens, 26 How. Pr. 244; Cole v. Moffett, 20 Barb. 18; Fosgate v. Herkimer, etc., 12 Barb. 352; Wilson v. Brownlee et al., 24 Ark. 586, 589.)

There was no foundation laid for the admission of said deposition in evidence, because there was no proof that the child mentioned in said entry of christening was the child in question. The defendant must prove the identity of the child mentioned in the entry of christening with the child in controversy. (1 Greenl. Ev., 10th ed., § 493; Barber v. Holmes, 3 Espin. 190; Birt v. Barlow, 1 Dougl. 171)WAGNER, Judge, delivered the opinion of the court.

When this case was here on a former occasion the judgment was reversed on account of the ruling of the court below in refusing certain instructions asked by the plaintiff. (Morrissey v. Wiggins Ferry Co., 43 Mo. 380.) After the case was remanded and upon a new trial, the law was declared in conformity to the rules laid down by this court, and there is now no controversy upon the question of instructions. But the defense was based upon two propositions: 1. That the accident was not caused by the negligence of the defendant, its officers or agents. 2. That the deceased daughter, Anna Morrissey, was over eighteen years of age at the time the accident occurred.

If there was not a total failure of proof, or in other words, there was sufficient evidence to authorize the case to be submitted to the jury, the first proposition is not maintainable in this court. The jury, as the triers of the fact, were the proper judges of negligence, and by their finding we are concluded. As the defendants were carriers of passengers for hire, extraordinary care was required of them, and they were liable for slight neglect. The light was turned in such a direction that it shone full upon the boat, but left everything outside in darkness. Had it been turned so as to have reflected on the water, the accident would probably have been averted. The lower or iron bar at the gangway was left down entirely, and it seems that when that was taken away passengers were accustomed to leave the boat and go underneath the upper bar. These were all acts of omission, from which the jury might reasonably infer or deduce negligence. From the fact that the iron bar was down, and that the light negligently and wrongfully obstructed her view, the deceased was misled and lulled into a false security, and it does not appear that she was looking in a direction different from that in which she was going, or that she was not observant of her steps. It was not imprudent in her to act upon the presumption that those in charge of the boat would conduct themselves in accordance with her rights and their duties. A defendant will not be allowed to impute a want of vigilance to one injured by his act, as negligence, if that very want of vigilance were the consequence of an omission of duty on the part of the defendant. The evidence was abund antly sufficient to justify the court in submitting it to the jury and it is absurd to say that there is a total want of proof to sus tain the verdict. It is insisted that the court committed error in not permitting the witness, Keith, to give his impression as to the age of the deceased. The witness stated that he should judge Miss Morrissey was from twenty to twenty-five years of age. But so far as the record shows it does not appear that the testimony was ruled on, or that it was even objected to, or that any point was made upon it in the court below. There is nothing, therefore, in this respect which requires our notice.

The remaining question is the action of the court in excluding certain depositions taken by the appellant in Buffalo, N. Y., for the purpose of proving the age of the deceased. The deposition objected to was a copy of the record...