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

• Decision Date: 06 February 1888
• Court: Missouri Supreme Court
• Parties: SCOVILLE v. HANNIBAL & ST. J. R. CO.

6 S.W. 654

94 Mo. 84

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

Supreme Court of Missouri.

February 6, 1888.

EVIDENCE — TESTIMONY OF WITNESS ON FORMER TRIAL.

On the second trial of an action against a railroad company for negligently causing death, plaintiff offered in evidence testimony alleged to have been given on the former trial, as preserved in the bill of exceptions filed therein, the witness having since become mentally incompetent; but there was no evidence that such testimony was substantially the same as given by the witness. Held, that its admission was error, and that as it tended to show that the accident occurred in a street crossing, while other witnesses testified that it occurred elsewhere, the evidence could not be said to have been harmless.

Appeal from circuit court, Livingstone county; J. M. DAVIS, Judge.

Maria L. Scoville brought this action to recover damages for the death of her minor son, alleged to have been caused by the negligence of the defendant, the Hannibal & St. Joseph Railway Company. Plaintiff obtained judgment, and defendant appealed.

Strong & Mosman, for appellant. James W. Boyd, for respondent.

NORTON, C. J.

This is an action brought by plaintiff to recover damages for the death of her minor son, alleged to have been occasioned by the negligence of defendant, and the case is before us on defendant's appeal from a judgment rendered in favor of plaintiff; and the action of the court in receiving evidence, and in giving and refusing instructions, is assigned for error. The cause has once before been in this court, and is reported in 81 Mo. 434, from which it appears that the court, after holding that the facts in evidence warranted the trial court in submitting the case to the jury, reversed the judgment for error committed in giving instructions. On a retrial, the error which led to the reversal of the judgment was avoided, and, as to the point ruled upon in the opinion, gave instructions in conformity with the views there expressed. The facts disclosed on the second trial are substantially the same as those commented on in the opinion alluded to, and for that reason a discussion of them here is unnecessary.

It is assigned for error, among other things, that on the retrial the court, over the objection of defendant, allowed the following testimony of Dr. Loomis, as preserved in the bill of exceptions taken and filed in the first trial to be read as evidence, viz.: "I reside at Easton, Mo. I knew Horace Scoville, deceased. Saw him immediately after he was killed. There is a platform on the east side of the depot. The street upon which he was killed is immediately east of this platform, and is 60 or 70 feet wide. He was killed about 40 feet east of the platform. The platform is 10 or 15 feet out in the street. The depot is on the north side of the railroad track, and the switch is south of the main track. The platform is on the south side of the depot, and extends east of it. The crossing for wagons is east of the platform, and the planks on it are about 12 feet wide. I saw Horace Scoville alive about a half hour before he was killed. The first blow he received was on the back part of the head. This was...