Estes v. The Missouri Pacific Railway Company

• Citation: 85 S.W. 909,111 Mo.App. 1
• Parties: WILLIAM ESTES, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Decision Date: 27 February 1905
• Court: Court of Appeals of Kansas

85 S.W. 909

111 Mo.App. 1

WILLIAM ESTES, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 27, 1905

Appeal fro Morgan Circuit Court.--Hon. James E. Hazell, Judge.

REVERSED AND REMANDED.

Cause reversed and remanded.

Wm. S Shirk for appellant.

(1) It was gross error to permit the plaintiff to introduce the rebutting evidence of Peter Porter, James Campbell and Thomas Newkirk, jurors in the case of Ada M. Estes against the Missouri Pacific Railway Company, tried a week before, to contradict the evidence of C. C. Crews and S. C. McVey witnesses for the defendant. The stenographer's notes of the evidence of these witnesses, properly transcribed and testified to by him, was the best evidence. R. S. 1899, secs 10126, 10129. While such notes are not infallible, they are better than mere memory, after such a period as elapsed between the first case and this one. Padgett v Moll, 159 Mo. 156; Bradley v. City, 90 Mo.App. 424, 425. (2) It was error to refuse to grant defendant a new trial on account of the improper remarks made by counsel for plaintiff in the closing argument to the jury. Marble v. Walters, 19 Mo.App. 134; Smith v. Tel. Co., 55 Mo.App. 634; Ensor v. Smith, 57 Mo.App. 596; Andrews v. Railway, 71 N.W. 377; Taylor v. Railway, 79 N.W. 18; 1 Thomp. on Trials, secs. 264-266.

C. C. Lawson, John D. Bohling and Wm. Forman for respondent.

(1) The court did not err in permitting the evidence of Porter, Campbell and Newkirk, jurors in the case of Ada M. Estes v. Missouri Pacific Railroad Company, tried a week before this cause, to contradict the evidence of C. C. Crews and S. C. McVey, witnesses for the defendant. Article IV, chapter 168, Revised Statutes of 1899, does not change the rule of evidence of impeaching witnesses by showing contradictory statements to their evidence made on a former occasion. This act establishes the office of official stenographer and defines his duties. (2) As to the appellant's last assignment of error, viz.: that a new trial should have been granted on account of the improper remarks made by counsel of plaintiff in the closing argument to the jury, we desire to call the court's attention to the fact that no exceptions were saved to the action of the court in not reprimanding the attorney. 4 International Ency. of Surgery, p. 687.

OPINION

BROADDUS, J.

This case in its most important particulars is like that of Estes v. Railway, 110 Mo.App. 725. William Estes is the husband of the said Ada M. Estes and was with his wife at the time of the collision described in her said case, and he claims that he was also injured at the same time. Most of the questions raised in that case are similar to those raised in this. It is, therefore, unnecessary that they be noticed further. We will only consider such points here as are not common to both cases. The plaintiff recovered a judgment for $ 2,500, from which defendant appealed.

We will notice only two questions peculiar to this case, viz: That the court erred in the admission of improper and the rejection of proper evidence; and that the verdict of the jury was the result of prejudice and passion brought about by the misconduct of one of plaintiff's attorneys at the trial.

The court against defendant's objections admitted the evidence of three of the jurors in the Ada M. Estes case to contradict the evidence of defendant's witnesses, C. C. Crews and S. C. McVey, who also testified in that case. Defendant contends that the best evidence of what these witnesses testified to was a transcript of the stenographer's notes taken at the time. We are cited to the case of Padgitt v. Railway, 159 Mo. 143; but that case does not decide the question. All that the court does say in that respect is: "The purpose of having the testimony taken down in shorthand is to preserve it for future reference after a period has elapsed during which it might not be so well remembered," etc. In Bradley v. Spickardsville, 90 Mo.App. 416, it was held by this court that the stenographer's notes were more accurate and reliable than the memory. And that case is not in conflict with the Padgitt case, supra, where the court held that it was error to have the stenographer's notes taken at the trial in progress read to the jury.

It seems to us that the stenographer's notes were the best evidence of what the three witnesses testified to at the trial of the other cause. Formerly there was no other mode of contradicting a witness in that respect. But since the adoption of the statute providing for shorthand notes to be made of the evidence...