Sly v. Union Depot Railroad Company
| Decision Date | 16 June 1896 |
| Citation | 36 S.W. 235,134 Mo. 681 |
| Parties | Sly et al., Appellants, v. Union Depot Railroad Company |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.
Affirmed.
C. P. & J. D. Johnson and Geo. S. Grover for appellants.
(1) The court gave improper and erroneous instructions at the request of defendant. Schepers v. Railroad, 126 Mo. 665. (2) The plaintiffs should have been awarded a new trial in view of the extraordinary developments in this cause subsequent to the verdict. Sec. 2240, R. S. 1889, p. 577; Hurlbut v Jenkins, 22 Mo.App. 572; State v. Murray, 91 Mo. 103; State v. Wheeler, 94 Mo. 254; State v Bailey, 94 Mo. 316.
Judson & Taussig for respondent.
First. There is no error in the instructions of which plaintiffs can complain. The court submitted the issue of contributory negligence to the jury, and their verdict is conclusive. Second. The application for new trial on the ground of newly discovered evidence set forth in the affidavits was wholly insufficient, both in the averments and in the proof. (a) A new trial is never granted on newly discovered evidence tending only to discredit or impeach a witness. Deer v. State, 14 Mo. 348; Boggs v. Lynch, 22 Mo. 464; Jackard v. Davis, 43 Mo. 535; Phillips v. Phillips, 46 Mo. 607; State v. Smith, 65 Mo. 464; State v. Rockett, 87 Mo. 666; State v. Meyers, 115 Mo. 394; State v. Sansone, 116 Mo. 1; State v. Howell, 117 Mo. 307; State v. Welsor, 117 Mo. 570; State v. Stewart, 127 Mo. 290. Nor where the newly discovered evidence is merely cumulative in its character. Mayor v. Burns, 114 Mo. 432. The above rules have been adhered to even where the witness himself files affidavits contradicting his own evidence at the trial. Holtz v. Schmitz, 12 Jones & Spencer, 327; People ex rel. Maguire, 2 Hun (N. Y.), 269. Motion for new trial on affidavits going to impeach the credit of witnesses ought never to be permitted: Kent, C. J., in Duryea v. Dennison, 5 Johnson, 298. "There would be no end of new trials if they were granted on new evidence which would impeach the character of a witness at the trial." Shumway v. Fowler, 4 Johnson, 424. It is therefore settled that a court will not set aside the judgment alleged to have been obtained by perjury unless the witness has been convicted of perjury, or his death since the trial has rendered his conviction impossible. Dych v. Patton, 3 Jones, Equity, 332; Bunn v. Boyd, 3 Johnson, 255; Duryea v. Dennison, 5 Johnson, 292; Shumway v. Fowler, 4 Johnson, 424; Holtz v. Schmitz, 12 Jones & Spencer, 327; Warwick v. Bruce, 4 M. & S. 140; Thurtell v. Boumont, 4 Bingham, 339. The alleged perjury or mistake of a witness, under the statute, only lies as ground for a new trial when the court is satisfied that an improper verdict for defendant was occasioned thereby. R. S., sec. 2240. There was no pretense of conforming to this requirement in plaintiff's motion, or the affidavits filed in support thereof. A witness can not be impeached even at the trial by contradicting his answers on collateral issues. A fortiori such collateral issues can not be tried on affidavits filed for the first time on application for new trial. But apart from all the foregoing considerations, the indentity of the witness Lowe, his presence at the accident, being the only point on which any attempt was made to attack his testimony, was conclusively demonstrated by the affidavits filed by the defendant.
Plaintiffs who were, on the eleventh day of July, 1893, husband and wife, and the parents of Percy G. Sly, then about fourteen years of age, sue for damages on account of the death of their son, caused by the alleged negligence of the servants and employees of defendant then in charge of its cars. The accident occurred in the city of St. Louis, where the case was tried. From a verdict and judgment in favor of defendant plaintiffs appealed.
The defendant company operates an electric line of cars from the center of the city to Tower Grove Park, and on the evening of the accident deceased boarded car number 151, down in the city to go to his home near said park. While on the way this car for some cause, not material, became disabled, and had to be pushed on by the next car (number 153) to the power house, where it was switched off, and the passengers transferred to the one last named.
By the disablement of said car, the one next succeeding it, number 153, and others still back of it, were delayed to such an extent as to cause a blockade, so that when 153 arrived at Gravois and Arsenal street station and switch, where a part of defendant's cars usually stop to switch and return to the city, it was ordered to discharge its remaining through passengers and return down town. The passengers for Tower Grove were instructed to take another through car. Deceased was one of the passengers for Tower Grove Park, and when through car number 157 came along he undertook to jump on ahead of others, who were endeavoring to take the car before it had reached its regular stopping place. This car had an open car, called a trailer, attached to it in the rear. Deceased had a basket on his right arm, and endeavored to jump on the front car as it passed along, by catching hold of the rear dashboard with his left hand, whereby he immediately swung between the front and rear car, and the rear car passed over him and injured him, from the effects of which he died within a few hours thereafter.
Witnesses on behalf of plaintiffs testified that just as deceased took hold of the dash board, the car gave a sudden movement or jerk forward. There was evidence on the part of defendant to the contrary. The witnesses also differed as to the speed of the train which varied from three to seven miles per hour. At the time of the accident the conductor was on the front platform of the trailer. When he saw deceased approaching the train he called to him to keep back, and motioned to him to do so, but he paid no attention to either. As soon as the conductor saw the danger the boy was in, he gave the danger signal, and the train was at once brought to a standstill, but it was too late. At the time of, and prior to the accident, the boy was in the employ of the Samuel C. Davis Dry Goods Company, and passed to and from his home to his work daily, on the electric street cars over the same line of road.
The court in behalf of plaintiff instructed the jury as follows:
"The jurors are instructed, that if they believe and find from the evidence that plaintiffs are husband and wife; that the deceased, Percy G. Sly, was, at the time of his death, the minor son of plaintiffs; that on or about the eleventh day of July, 1893, at the city of St. Louis, he was on one of the cars of defendant as a passenger for hire, for the purpose of being carried to a point on said defendant's road on Arsenal street beyond its intersection with Gravois avenue; that when said car, upon which he was such passenger, reached said Arsenal street at its intersection with Gravois avenue, the defendant's employees in charge of said car, directed the said Percy G. Sly and other passengers to leave the same and take passage on the next car following the said car, for the purpose of being carried to his said destination; that in pursuance of said direction, the said Percy G. Sly left said car at or near the intersection of said Arsenal street with said Gravois avenue, for the purpose of taking another car for his said destination; that while waiting at said point on Arsenal street, two cars of the defendant passed without stopping, and that the agent of defendant, in charge of the second car which so passed, directed the said Percy G. Sly and the other passengers, then and there standing with him on said street, to take the next car following; that the next car following, when it got near or opposite to where the said Percy G. Sly stood upon said Arsenal street, had its speed slackened to a slow rate as if it was going to be stopped, for the purpose of permitting the said Percy G. Sly and the other said passengers to get upon the same; that the said Percy G. Sly thereupon got upon the running-board of said car; that the motorman, in charge of and running said car, knew, or by the exercise of reasonable care might have known, that the said Percy G. Sly had got upon the said car and was then and there standing upon the running-board thereof, but notwithstanding suddenly started the car forward with sufficient force to throw the said Percy G. Sly off his balance; that by reason of such sudden starting of the car, the said Percy G. Sly was thrown from his balance off of said car, and under the wheels thereof, and thereby received injuries causing his death; that the said Percy G. Sly was then and there in the exercise of the same care as is customarily exercised by persons of ordinary prudence, under like circumstances; that then the jurors, if they so find the facts to be, should find a verdict for plaintiffs; and if they so find they will assess their damages at the sum of five thousand dollars."
Over the objection and exception of plaintiffs the following instructions were given for defendant:
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