Preston v. The Hannibal & St. Joseph Railroad Co.
| Decision Date | 21 January 1896 |
| Citation | 33 S.W. 783,132 Mo. 111 |
| Parties | Preston, Appellant, v. The Hannibal & St. Joseph Railroad Company |
| Court | Missouri Supreme Court |
Appeal from Monroe Circuit Court. -- Hon. R. F. Roy, Judge.
Affirmed.
A. D Bell and R. B. Bristow for appellant.
(1) The court admitted testimony as to habit of plaintiff and others of going on and jumping off the moving train at the station of Monroe. (2) The court having admitted evidence of the habit of plaintiff and others of getting on and jumping off moving trains, to the prejudice of plaintiff, ought in all fairness to have admitted the evidence of plaintiff tending to show that he had business in Hunnewell and was going there on business; the court excluded this evidence. Coughlin v. Haeussler, 50 Mo. 126; State v. Sherman, 55 Mo. 83. (3) Jurors Sanders and Dixon were not qualified jurors to try the cause, and as soon as the court's attention was called to it, it ought to have set the verdict aside.
Spencer & Mosman for respondent.
(1) The court did not err in excluding the oral declaration of the plaintiff, made at the time he was paid his wages by his employer, or in refusing to let him swear on what particular business he was going to Hunnewell. A party can not manufacture evidence in his own favor. His own oral declarations are incompetent. State v. Sherman, 55 Mo. 83. (2) It is error to admit incompetent evidence, which has a tendency to corroborate in an immaterial and unimportant particular. Ritter v. Bank, 87 Mo. 574; Graham v. Auerswald, 53 Mo.App. 131. (3) No exception to the qualification of a juror can be allowed after the jury is sworn. Sec. 6061, R. S. 1889; State v Waller, 88 Mo. 404. "If a party permits a juror to be examined without oath, making no objection thereto, his consent will be implied." Thompson on Trials, sec. 101.
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 two hundred 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.
I. No exceptions were saved to the impaneling of the two jurors. It is not claimed that they were not sworn to try the cause, but simply and only that th...
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