*1 SUPREME COURT OF MISSOURI, Railway Jones v. Frisco Co. An JONES,
WILLIAM FRANK Infant, J. By JONES , His Next v. ST. LOUIS-SAN Friend, FRANCISCO RAILWAY COMPANY, Appellant. Two,
Division March 1921. Credibility Contradictory of Witness: Statements 1. INSTRUCTION: ' Testimony: It instruction Comment. not error is to refuse telling plaintiff has if believe find and the “contrary and out of variance with made statements court “may testimony” they into fact consideration take this weight credibility” they give determining what will and testimony. plain- plaintiffs is Such an instruction a comment general evidence, given. The and instruction. tiff’s should not be respecting credibility of is sufficient. witnesses Prejudice: VERDICT: Reversal. EXCESSIVE Passion Where 2. upon controversy of the is merits substan- against during the tial no error was committed defendant trial, progress be of the a verdict a reasonable amount will for light facts, upheld verdict, appeal. But in the of -all if passion appears prejudice on the to have either from resulted judgment reversed, jury, part and the cause of the will a new trial. remanded -- n : Testimony. Contradictory (cid:127)-: -: Where upon moving trespasser testi- up attempted to the iron ladder a car fied that he climb as axe-handle, top him car struck with an a brakeman on sandy ground off, sloped which he fell knocked towards the' track, the track and car wheels cut off he towards rolled foot,- them five testified on the his day witnesses told got he on a car which three was two of the accident or boarded, companions one of his the car which had cars ahead get off and the car back to where such wanted doing so, companion was, that, fell off of the car and guilty off, were either and these witnesses cut foot guilty testifying, per- perjury in so wilful them; denying statements and where that he made such and a brakeman both conductor testified accident, time no brakemen were in the caboose at the any car; and where the evidence was on brakeman overwhelmingly against manner in which
Yol. OCTOBER TERM, 1920.
Jones v. Frisco injured, jury, nevertheless, ignored claims to have been and the $15,000, and returned verdict for $2500 than more which compensation, the trial court ruled was reasonable and which the *2 Supreme excessive, Court to the considers least extent $5,000, during progress if error no had been committed the of the trial, passion it will be ruled that the verdict was the result prejudice part jury, justice or requires the and that reversed, judgment that the be and the cause remanded for a new trial.
4. INSTRUCTION: for Affidavit Continuance. Where defendant application continuance, filed its for a based on the absence witness, up of a set therein facts such witness would testify present, if he were which were substantial and material agreed issues, to the if such witness were present testify facts, he would those to the defendant is entitled telling to an instruction that the evidence of such absent witness, them, as contained said affidavit and to read en- is given weight to and be titled should same and credit give personally present if witness would were and testified same facts. Eject Authority Trespassers. 5. BRAKEMEN: In this there case sufficient evidence to enable the to determine whether freight moving not brakemen on defendant’s authorized, eject acting duty, while in the line tres- of their passers train. from the Damages: Misleading. 6. INSTRUCTIONS: Measure If defendant given damages, is fearful that a instruction measure unobjectionable, may way jury, itself some mislead it is duty declaratory defendant’s ask an instruction viewpoint. from its law Appeal from. Louis Circuit City St. Court. —Hon. Frank
Landwehr, Judge. remanded.
Reversed T. Evans, F. E. A. P. W. Miller and Stewart for ap- pellant. demurrer to tlie should
(1) evidence have been The sustained, peremptory requested and the instruction at the (a) the whole case should have been given, close of Mo.—5 2S7 MISSOURI, OF
66
COURT
SUPREME
Railway Co.
Jones v. Frisco
to manner in which
he received
Plaintiff’s evidence
comport
injuries
beyond
not
belief and
with
does
laws,
(b)
physical
testimony
plain-
facts
The
either
Cooper,
it was
witnesses,
tiff’s
Warmack
freight
expel
duty of
on defendant’s
trains
brakemen
trespassers
therefrom was based
their
conclusions,
incompetent
support
hence was
and cannot
the verdict.
Railway,
Railway,
Kane v.
Mo.
Davidson v.
44;
remaining
S. W. 277.
evidence
sufficient
brakemen
show that
duties of
included
ejection
trespassers
trains. -This will
presumed,
authority
of brakeman in that
but the
be
behalf
fact
must
established
mere
aliunde
Railway,
Krueger
brakeman. Farber
is a
Jones v. Frisco
weight
give
titled
the same
and credit
if
would
present
personally
the witness were
and testified to the
(4)
same facts before them. Sec.
R.
S.
1909.
grossly
clearly
verdict
excessive,
result
prejudice
passion
part
jury,
on the
and not-
withstanding
the remittitur forced
nisi,
the court
judgment
Chitty
is still excessive.
v. Transit Co., 166 Mo.
443; Stolze v. Transit
Mo.
Co., 188
590; Nicholds v. Class
Railway,
Co.,
68;
126 Mo.
O’Connell v.
Earl M. and Arthur Stahl (1) Appellant complain alleged cannot error in respondent’s gives requests instruction where thing. containing instruction the same Smart Kansas v.
City, 208
Williams
Elec.
Co.,
Mo. 14.
(2) Testimony
customarily put
per-
that brakemen
transported
sons who
entitled
long period
was done over a
this
trains,
time, will.
eject persons
authority establish
brakeman’s
who
right
App.
no
ride. Markham v.
139 Mo.
Railroad,
have
authority
eject
(3)
220.
brakeman
To show
competent
trespassers
or conductor
it is
for brakeman
testify
are.
what the duties of
brakeman
Farber
(4)
Ry.
Defendant is liable
Co.,
Mo. Pac.
*4
if what he
the acts of
brakeman
did was within the
its
for
employment. Droelshagen
scope of the brakeman’s
v.
(5)
said
is also
186Mo. 266.
It
that defendant
Railroad,
is
employee
in
“when
of
done
for the
its
course
liable
acts
Ry.
employment.”
Pac.
Farber Mo.
Mo.
Co.,
v.
116
his
of
App.
201
Screw Co.,
St. Louis
Mo.
358;
92; Gardner v.
(6)
458.
Railroad,
omission
252 Mo.
v.
Whiteaker
requirement
cautionary
to find
an instruction
from
weight
evidence is
re-
Ry.
S.
Zack-
686;
220 W.
Co.,
v.
error. Ullrich
versible
68
COURT OP
SUPREME
MISSOURI,
v. Frisco
Cody Gremmer,
Co.,
wick
Ins.
121 Mo. Co. v. 359; 166 Conkey, Fulton, App. Logan 192 Mo. Field, v. Strode v. 28; 69; Rogers App. Mo. Warren, v. 75 15; & 106 Mo. Powers App. (7) Ry. App. Mo. It Baker 606. 52 275; Co., y. single improper and comment on a is part out witness properly this reason the court evidence; Railway, appellant’s B. Landrum v. refused instruction App. Ry. Quinn Co., 514; Huff 721; Mo. Railway, v. Transit Mo. Co., Zander 46Í. commenced in C. This action
RAILEY, August City 20, on Louis, St. Court of the- Circuit petition, which amended The case tried the second between was minor in that states substance, years age; Prank Jones was J. and fifteen twelve appointed prose qualified friend, such, next rail behalf; that defendant this action in that cutes operated July, corporation a line of in and, road County, Perry Missouri, in St. Starland, railroad from July 17,1917, about on or State; in said Louis, City, Crystal one de boarded Missouri, near freight Louis; for St. road, bound fendant’s trains said rapid motion, in and while it was while said charge of said train did one servants of defendant’s maliciously willfully, wrongfully int.entonally, threat whereby him, en strike did strike rapid train while was was caused to fall from said over, ran or more said train motion, and one wheels plaintiff’s lacerated, left so tore and bruised crushed, foot, amputated; to be, that the front half thereof had and was body bruised; were head, limbs and and brused, torn lacerated, his back was sus great nervous shock. “That said acts said tained a charge servant scope- said within were employment authority under of his defendant, undertaking done he was while serve defend employment pursuant to his and while he ant *5 Yol. TERM, OCTOBER y. Railway Co. Jones Frisco by employment of his defendant; the course under that injuries plaintiff etc. sustained, suffered,” so has petition prayer actual $20,000 concludes with a damages. damages punitive $10,000 and general The answer denial. appears from
It that who was the evidence years age, companions, about fourteen two Edward of years and William age about fifteen and thirteen Hawver, Crystal City respectively, July on 17, 1917, returning and were St. aforesaid, desirous Louis, where that Missouri, about 400 feet lived; Crystal depot bridge City, north course of erection over defendant’s track; that’about one passed day o’clock on that a north-bound train through Crystal way plain- City to St. its that on Louis; boy, according older to their Edward, tiff and the testimony, Hawver got on while this the west side, train younger boy get that did motion; Hawver along ran Plaintiff train, but the side same. companions that his two he substance, testified, were standing beside the track about fifteen north feet along; bridge train when the came that the twenty running miles Ed- hour; about fifteen or an that engine, got on of a near car, ward Hawver side plaintiff got boy him; on two that the smaller cars behind along by on, train; but ran side did not plaintiff car hand-holds box the iron that climbed on a top that same; within feet until he about two steps four five before was about of those climbed “that the brakeman hurt. He testified doing you there?’ a stick and ‘what said, car with are I off;” fell this hit me with the stick, and he he did know shoulder; him on the left man struck what the long two feet man hit it was about but with, hard, looked like axe hit handle; on his fell knocked train; him off the track; latter slanted back sand; slipped foot train and his left under him. struck of that train that the brakeman off; was cut MISSOURI, SUPREME COURT OF *6 “Q. further testified on He cross-examination: How you did know that man awas brakeman on that train? A. I have saw before.” them just said the brakeman him
He hit that he had once; got ridden about 100 feet from where he the on train. Plaintiff then taken was to the office Hr. Commer- injuries where his ford, dressed. deposition Edward Ilawver testified that “the . got
three us we boarded train. I was on the on; coal near car the middle of train and the other the two boys got on I two cars back me. saw a on brakeman boy get train, the and the off; he told hollered told and. get him to off. train in motion when was this was running twenty done; the train was or about fifteen miles an hour. I knew that an accident had occurred first my when hollered for brother me.” he in substance, On that cross-examination, testified, get he see brother on the the did not his that latter train; gone city bridge or blocks had about three from the two plaintiff got going and off, when the fifteen was twenty got when he that the brakeman off; miles hour top plaintiff saw where whom he was on the box-car ^ plaintiff was; was on the back end that get say off, that brakeman told but did not the anything that as soon witness; brakeman said plaintiff hopped get fell; off off, that brother his was running along side of the train behind that witness; running he at side of car Jones was all on, the time. that testified,
William Hawver in substance his plaintiff got first car, brother boarded on a two car back; that, “I saw cars brakeman further holler boy scared and he sort ran at Jones back- up his fell, off, wards and and cut foot and I hollered get my going train;” that brother the train off twenty per fifteen that miles two hour; brother; freight back further than his cars as witness was along going he the side saw a brake- trying hollering man at Jones and him; to scare he TERM, OCTOBER Yol.
made Jones unbalance and he fell liimself, backwards; right that his foot went underneath foot his car, up cut the center saw arch; top the brakeman on that he had a club the box car; and it like an axe hand, looked handle; picked up plaintiff; started to hit hollered off; himself and latter overbalanced went that witness did the train. witness
On that the brake- testified, cross-examination kneeling man car about middle witness saw him hollered, that when brakeman down; heard brakeman tell raise a club; *7 get club. car or he hit him would with to down freight train “And further testified: with that Witness keeping- running twenty I miles an hour was fifteen or up all' the train was and above noise that with that car, making said to William hear brakeman I could what the Jones.” further testified:
This witness say hand? “Q. had a club You this brakeman A. sir. Yes, ' “Q. did A. Yes, he? lie hit William Jones, didn’t to. made break sir—he up
“Q. held the club do? A. He did he What him. strike to started A. sir.
“Q. Yes, him? did strike Well, long club? Two foot. “Q. A. How was that Yes, “Q. A. sir. two About feet?
“Q. from William the brakeman How far was by feet? mean A. You Jones? foot. thirteen Yes. A. About
“Q. brakeman him. “Q. thirteen feet About sir. up car? A. Yes, box the side down on “Q. Jones And William sir. A. Yes, car? coal get A. He off? you Jones William see Bid “Q. get fell off. off; he didn’t
“Q. A. sir. Yes, off? He fell Yes, you A. sir. fall? “Q. Did see SUPREME COURT OF MISSOURI, y. “Q. you were Where when fell? A. Down the side of the box car. ' “Q. By you the side of the same box car had been running along by? A. Yes, sir.
“Q. going How fast train when he fell off? Kept speed.” A. the same rate of
John Warmack, a witness for testified that years he worked about nine for defendant on the line running road from Starland to St. Louis; started as a through brakeman, conductor; freights, two defendant had freight brakemen, and three brakemen on local trains; he knew what the duties of period, freight during brakeman were the above trains running questions following over said road. The propounded then witness:
“Q. during What were the duties, those times, regard persons; persons, take first case of includ- trespassers,- ing are who members of crew passengers, are who and who on the of a cars—what were brakeman in that duties event? object that, I desire because “Mr. Stewart: incompetent, irrelevant and immaterial and for the calls conclusion the witness.” objection exception
This overruled and saved. then the duties of the answered, Witness were brakemen keep trespassers put *8 to off and them off if on. testified
On cross-examination this been that witness he discharged had from on account a service, rear- re-employment sought end defendant collision; charge to re-instate conductor in refused that the him; the train. Cooper a E. D. was sworn as witness he was substance, that a brakeman de- testified, passed had road in over the line Oklahoma, fendant’s passenger few times. from St. Louis to Starland trains to of brake- was then what Witness asked duties state persons respect ejecting trains were, man to objected right had no to ride thereon. This was who Yol. 287] OCTOBER TERM, 1920'.
Jones v. Frisco for the same assigned reason heretofore as to the testi- mony subject. of Warmack on the objection same The exception was duly overruled saved. He also testi- put persons fied that he had off he while was brakeman. Simpson Guy plaintiff Dr. respect testified in injuries.
the latter’s foregoing plaintiff’s substantially covered all of in chief. At evidence the conclusion of defendant same, interposed a demurrer to which was evidence, exception overruled and an saved. plaintiff tends Defendant’s show that was Crystal City taken to to the Dr. officeof James Commer- emergency ford for surgeon treatment. Dr. Oommerford was Pittsburg for the Plate Company Glass at the point. The above above doctor testified that he dressed plaintiff’s injuries on the afternoon he was hurt; that the conscious and talked was him about the man- injuries. ner in which he received said Dr. Oommerford respect subject, to this testified, as follows: “Q. you What did tell he about manner in which injuries? he A. Told sustained me that he and the boys other boarded train to to St. Louis; ride gotten had about two ahead of he cars the other boys wanting hopped back to he and, them, car. fell under the response you your
“Q. ques- Did he tell injuries? in which tion A. to the manner sustained sir. Yes, anything
“Q. say Did in conversation about hitting knocking him him with a the brakeman club and from the train? A. No, sir.” Hughes, heard Mr.
Witness said he tell agent just same what station defendant, afternoon, injured. told as to how he had witness He present when exhibit 1 testified Hughes; written Mr. latter wrote that the it as plaintiff dictated written, at the it; time perfectly plaintiff was and his conscious mental condition *9 clear. SUPBEME OP COUBT MISSOURI,
Jones v. Frisco plaintiff On cross-examination, witness testified that complained very injury, little his was hut worried as to going got what father was to him to him his when he do home. Witness he did not allow the com- panions plain- room dressing come ino while he was tiff’s foot. Taylor, superintendent Pittsburg
Geo. O. Company, Crystal City, plaintiff Plate he saw Glass while being emergency carried to Dr. was Commerford’s for plaintiff He treatment. that testified, substance, injuries; conscious and told plaintiff how him received his he that got him on told “he car ahead other boys jumped get and on he same off, car were pile and on, struck a of sand and under car went got say anything hurt. The did not in that con- being about versation a brakeman train.” Witness identified, defendant’s exhibit shown, was he which 1, signed Hughes as witness. said, He when wrote plaintiff, signed read 1, exhibit he it over the latter it. Hughes, agent Crystal
A. Ií. station of defendant at City, day testified that with he talked same at Dr. of accident while Commerford’s he was office. He Hughes trying he told board north-bound freight companions; gotten two he train with had car-lengths two ahead of car, a coal where one of companions got get that wanted on, off doing boy the other back where so, fell and, off; car cut that he his foot wrote exhibit plaintiff gave that he read it facts; over to signed plaintiff and the latter it. bridge Boseman,
T. M. foreman of crew, bridge constructing mentioned who were freight pass bridge, testified, saw but any did not see of the train men train as present bridge; passed that he when Mr. over n Hughes told wrote defendant’s exhibit 1; boys Hughes trying and the two Hawver boys way to and the beat their St. Louis, other had two *10 1920. TERM, OCTOBER Yol. 287] Railway Frisco Co. Jones v.
gotten car on, of two or cars hack on a car three jumped get on and when lie car, same off went under the that, his foot did wheel. and who
T. P. for defendant, witness Williams, working testified that saw Roseman, with Forman bridge; after he was near the hurt, “ train ran ‘I and the over then said to him: fell down along and I fell of train me. I Avas the side Avalking walking Avas ran me.’ He me he it over told down and along it knocked him down and the train and the side train.” under foot follows: exhibit reads as Defendant’s “Crystal City, 7/17, Mo., my “My home name is Jones is William years old and I am 13 St. Louis, Moffitt Ave., Crystal July City, some friends 17th. I with onMo., and waited some go St. until 'back to wanted freight Louis jumped on going side St. Louis. I Avas train get getting I car decided after of car of Ex 1233 jumping get On off on another one. off this car and pile jumped and slid down under in sand on I car I Avas injured. my I knew that was getting foot the train freight jump Railway rules to Co. violation of a myself doing responsibility when all trains took it.
“Wm. Jones. G. O. Taylor.” “Witness R. testified Johnson, said J.
The conductor day accident consisted crew on the train that his engineer, fire- Roach, C. Holt and O. O. C. brakemen that both the above conductor; himself as man, when the train Avithhim caboose were brakemen, passed top were on bridge; crew none of his bridge; passed conductor the above it the train charge the brakemen of same and in is of a under orders. work freight train on the one the brakemen Holt, C. C. other and the injured plaintiff, that he testified, which conductor Aviththe caboose in the brakeman, Roach, MISSOURI, SUPREME COURT OP y. and that none the crew were on of said train itas passed bridge; get he did not order any the train and no did one that the hurt; see con- charge ductor of the is never saw brake- train; put man off the train. a man the other brakeman on Roach,
Clare the train which injured plaintiff, jurisdiction was absent from the applied Defendant set out continuance, court. prove by expected to Clare To what Roach. obviate *11 plaintiff’s counsel admitted that said continuance, wit- present, testify if the facts stated in said ness, application would according-
for continuance. His was evidence ly application jury read to the for a from said continuance, testimony testimony witness. The as of Roach Holt; corroborates that of the conductor and brakeman top and shows that he not nor was train; any others of the crew of the train, bridge; passed he that when did see that he did not' or train; on the order him strike plaintiff, nor he train, to etc. did threaten leave to strike he Plaintiff testified rebuttal that did not tell T. any along one walked else, P. or that he side Williams, him or knocked him down and or that it he struck of did not tell Dr. that he Commer- fell under the wheels; Taylor, any got one he or that on the ford else, or Mr.. boys; did that he tell other them train ahead of the jumped any the train in order to one else companions were; tell where his did not back pile under the train and on a sand them he lit just injuries way; guessed in that that- he sustained his per twenty running miles fifteen hour. was the train time dressed at the doctor that, tilled further tes He paining badly him could his foot so was wounds, keep screaming was all the hardly time, there; injected.” hypodermic He further said “until this explain anything Hughes when statement did not sign forced to it. taken TEEM, OCTOBEE Yol.
Jones v. may important, other as well Such facts as be deemed rulings con- the instructions and will be court, later. sidered plaintiff, for as follows: returned a verdict find in the cause,
“We, above favor joined, herein and assess on the issues damages thousand dollars.” at of fifteen the sum April judgment the trial court entered
On 10,1919, for the full amount. Defendant, aforesaid verdict for trial. filed a new due its motion time, On required plaintiff July remit, the court 14,1919, judgment; other- July of said 1919, $2,500 before on or granted. July 14th, trial On said new would wise, remitted the verdict $2,500 counsel Thereupon judgment for judgment a new $12,- aforesaid. for a trial motion and defendant’s new was entered overruled. appealed by duly court.
The case defendant this appellant, insisted-by “Points under its I. It is that a demurrer to and Authorities,” sus whole have been case should the conclusion of upon question intelligently, pass *12 In this tained. order very been set out has heretofore Demurrer entering fully. dis into extended Without Evidence. justified subject, in hold not feel we do of this cussion entitled to ing, law, that is not matter of a as recover. assigns error, action of the
II. Defendant as refusing which B, in its Instruction reads as court trial follows: ‘‘ you that if and find are instructed believe The that the has made statements evidence, from the alleged respecting in manner which his court out of contrary ^juries and at va- to, caused, Statements testimony given as on the wit- riance with, Out of negg Court. y0U may into this fact consid- take weight credibility you determining in what eration testimony plaintiff.” give to will 78 SUPREME COURT OF MISSOURI, y. Co. approved
This class of instructions was
in some of
Feary
of the earlier
in
court,
cases
this
like
v.
Ry.
subsequently
162 Mo. 78, but we
Co.,
overruled the
Feary
import, upon
theory
of a
case,
others
like
controversy
legal
that instructions like the
are,
one
upon
effect,
comment
evidence and
given.
general
given by
should
be
The
instruction
respect
credibility
court,
witnesses,
question.
[Montgomery
sufficient to
this
cover
v. Rail-
181
road,
v.
477;
Railroad,
Conner
III. It insisted that the verdict of only grossly this case for $15,000 ex passion prejudice cessive, but was the result of against sympathy plaintiff. may defendant, or It be general proposition, as a conceded, that where Passion plaintiff produces an substantial evidence before d jm,y ag Prejudice. controversy, the merits during progress has been committed no error appellant, against trial the verdict under such returned upheld for a reasonable amount will circumstances on the other If, hand, this verdict returned, court. appears light of all the facts before us, in the to have partiality prejudice upon part from either *13 resulted jury, in this of of the exercise its inherent court, jurisdiction, to reverse and will not hesitate remand the trial. for a cause new 79 TERM,
Vol. OCTOBER Jones r. Frisco plaintiff turning
On to the we find record, trespasser upon train lawbreaker at place the time He not there of accident. implied express of either the or invitation defendant. Taylor, George A. H. Doctor C. James Commerford, Hughes, T. M. T. P. whose tes- Williams, Roseman and timony guilty out, deliberate, heretofore .set were of perjury, testifying willful in told them on day of on the train ahead of the accident dropped companions, them, off to back with and was plain- injured by passing along same, in denying perjury, guilty tiff was of in willful, audacious par- either, any of said made such statements respect' ground to this ties. can be There no middle of R. the conductor Johnson, matter. J. Again, guilty thereon, C. a brakeman train, of Holt, C. perjury testifying both the conductor and of them and that brakemen were the caboose neither bridge top passed the the train when it respondent perjury, injured plaintiff, guilty of brakeman was when he testified that defendant’s with a struck him one cars in said going twenty fifteen to miles while the train was club, per hour, and knocked off. opinion, overwhelmingly our evidence was
In against in which he claims to as to the manner ignored injured, yet, seem have have been testimony positive as to clear defendant controversy, and returned verdict merits more the trial court $2,500 than favor for compensation, and which reasonable we declared was been to the extent of would have consider, excessive, during the committed least if no errors were $5,000, progress cir In view all the facts.and the trial. opinion that the in this we are case, cumstances justice require reversed cause should be ends of and [Goetz Ambs, v. trial. remanded a new Ran v. Evans, 396-7; Mo. Whitsett 172-3; Price Spohn Ry. 84-5; Mo. l. c. Co., som, *14 80 SUPREME COURT OF MISSOURI, Kailway
Jones v. Frisco Co. Garrett v. 92 l. Greenwell, Mo. 125; c. State v. Primm, Ry. 98 Mo. l. c. 372-3; v. 100 l. c. Co., Adams Mo. 569-70; Bishop, State v. Prendible, 165 Mo. l. c. 353; Weltmer v. Gibney 171 Mo. l. c. Transit 116-7; Co., v. 204 Mo. l. c. Harper 723; v. Partello l Railroad, Mo. c. 661; 217 App. Spiro 186 Railroad, Mo. 296, 55; 172 S. W. v. Tran App. sit Co., 263-4-5.] 102 Mo. l. c. unnecessary quote
We foregoing- deem it from .to the may passing- they fully authorities, but it in said be sustain the conclusions heretofore announced. Appellant assigns
IV. error action the trial refusing give, court in jury to the its instruc- tion marked “C,” which reads as follows:
“The court instructs that the evidence of the absent Clare witness, as contained in and Roach, read you support ap in affidavit of defendant’s plication for entitled continuance, is Absent given weight Witness: Instruction should the same and credit be give personally you it if said witness would you.” present [Sec. testified to same before facts Sup. L. Honor, Eisner K. SoL. of R. 1960, S. 640.] supra, applications referring in Section among things, provides, other that if “the continuance, sufficient, find affidavit cause shall shall court opposite party continued, unless will admit that present, swear facts witness, if would set out affidavit, in in which shall event the cause not moving party continued, hut shall read as therefor in stated such the evidence such ivitness so facts may disprove opposite party affidavit, facts prove contradictory any disclosed, by statements made in relation to the such absent witness matter issue . trial.” upon inability our to understand We confess what give theory of law the trial court refused to 'said instruc- “ ” clearly purview tion C. It within the the above Sup. statute, section of Eisner v. L. K. L.So properly held to state the Honor, law. OCTOBER TERM, Yol. y. important view- matter from defendant’s
This was an point, brake- conductor, Holt, the Johnson, as the person. present trial, man were Roach at the and testified deposition present, taken nor to have the the case. The defendant was entitled *15 testimony under that the informed, Section 1960 supra, though as was to considered as Roach, read, present affi- in the testified the facts stated legal davit. The right cut off the refusal of instruction argue jury before the defendant’s counsel to testimony. they In- the view take of Roach’s should properly struction and should “C” declared law, give given. same,' have been of the court refusal error. constituted reversible
V. There sufficient before not the enable to determine whether latter place brakemen on defendant’s time acting authorized, while weré accident Authority trespassers eject duty, their line 0f of Brakeman. Ry. [Farver
appellant’s 139 Mo. Co., trains. v. l. 252 Mo. c. Railroad, 458-9; v. Whiteaker 286; l. c. 281, App. Mar Co., 349; 201 Mo. Louis St. Screw Gordner v. Ry. App. Co., v. Curtis Railroad, 217; v. cum 99 Mo. App. 502.] appellant, by in-
VI. It is insisted It is not incon- one is erroneous. numbered struction given of de- instance at the with instruction five sistent together taken The two instructions fe^dant. Duties of fairly respect jury, presented law to Brakemen: instructions. defendant’s train of brakeman on duties j-0 in evidence. under such circumstances as were detailed Respondent’s VII. numbered instruction appellant by damages, measure of as is assailed Upon properly declaring a careful considera- the law. opinion tion of that said instruction we are of the same, the criticism leveled is not obnoxious Measure against by Damages, If coun- it counsel defendant. way might be mis- some sel were fearful SUPREME COURT OP MISSOURI, Dougherty. State v. they given, led said instruction as should sub have mitted to the court an instruction of their own declara tory viewpoint. of the law Having from their own fail position complain ed to do are in so, no given. [Morton one &T. l. Co., S. T. 217 W. c. 836; S. Powell v. l. Railroad, c. Minter v. Brads Browning treet Ry Co., 174 Mo. l. c. 491; Co. 124 Mo. 71-2.] l. c. questions argued
VIII. Some other been have respective they may briefs but counsel, appear upon a retrial of we cause, have not deemed necessary to consider same. pointed
On account of out, the errors heretofore Mosley cause is reversed and remanded for a trial. new concur. White, GG., foregoing opinion PER CURIAM: The of Rmlevt, opinion hereby adopted C., is *16 All of court. judges concur. Appellant. THE DOUGHERTY, STATE JOHN I. Two, Division March Dying Brought 1. EVIDENCE: Declaration: Antecedent Statement: hy complain Out A Defendant. defendant cannot of a statement hy just prior dying declaration, made deceased to his if it was by brought suggestion of out counsel. - n : Competency: -: 2. -: Bes A Gestae. statement preceding immediately dying declaration, made deceased way,” “it man a shame shoot a this made at the time shooting necessarily forming part of the facts and crime, attending indissolubly and so circumstances connected part gestae, properly itself form with the act as to res admitted evidence. objection Objection. general A 3. INSTBUCTIONS: General in a will not save instructions criminal case them for review