Preston v. Hannibal & St. J. R. Co.

• Decision Date: 21 January 1896
• Citation: 33 S.W. 783,132 Mo. 111
• Parties: PRESTON v. HANNIBAL & ST. J. R. CO.
• Court: Missouri Supreme Court

33 S.W. 783

132 Mo. 111

PRESTON v. HANNIBAL & ST. J. R. CO.

Supreme Court of Missouri, Division No. 2.

January 21, 1896.

APPEAL — JURORS NOT SWORN ON VOIR DIRE — EVIDENCE — STATEMENTS IN ONE'S OWN FAVOR — ADMISSIBILITY.

1. When no exceptions are saved to the impaneling of two jurors, claimed by plaintiff not to have been sworn on their voir dire, and it does not appear that he was prejudiced by such omission, it cannot be raised for the first time on appeal.

2. In an action where the issue is whether plaintiff was thrown from a moving train by defendant's conductor, prior statements made by plaintiff of his intention to go on the train are inadmissible.

Appeal from circuit court, Monroe county; Reuben F. Roy, Judge.

Action by Thomas Preston against the Hannibal & St. Joseph Railroad Company to recover for personal injuries sustained by him in being ejected from one of defendant's trains. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

This action was brought by the plaintiff to recover for injuries sustained by him in being ejected from a passenger train, while in motion, after it had pulled out from a station and proceeded some 200 yards. The evidence showed that plaintiff and a number of other young negro men living in Monroe were in the habit of getting upon the passenger trains, and seeing how far they could ride on the train and safely alight therefrom. The testimony of plaintiff's own witnesses showed conclusively that he joined with others in this practice. The plaintiff himself, though sworn as a witness, did not deny it. He, however, claimed that, without any provocation whatever, after he had informed the conductor that he wanted to go to Hunnewell, and put his hand in his pocket to get the money to pay his fare, the conductor suddenly and violently threw him from the train. The case was submitted to a jury, who returned a verdict in favor of defendant. After an unsuccessful effort to secure a new trial, the appellant (plaintiff below) brings the case to this court by appeal. The only errors complained of are — First, the exclusion of the declarations of plaintiff in his own favor; and, second, it is charged that two of the jurors, on the voir dire, were not sworn, so that their examination might be taken under the solemnity of an oath.

A. D. Bell and R. B. Bristow, for appellant. Spencer & Mosman, for respondent.

GANTT, P. J. (after stating the facts).

1. No exceptions were saved to the impaneling of the two...