43 Mo. App. 417 | Mo. Ct. App. | 1891
This was an action for damages grounded upon negligence. The plaintiff had a verdict and judgment, and the defendant takes the case here by-appeal. The errors which are assigned are, so far as they need be noticed, the following: First. That there was no evidence to take the case to the jury ; second, that the court erred in admitting an item of evidence as to the statement made by the driver of the defendant, against the defendant’s objection.
As to the first assignment of error it is to be observed that the injury, according to the evidence, happened in this way : The defendant was the owner
But we are of the opinion that the second assignment of error is well taken, and that it must lead to a reversal of the judgment. This question is exhibited by the bill of exceptions in this way: The plaintiff, being on the witness stand testifying in his own behalf, the following colloquy took place :
“By Mr. Talty: Now, I want to ask what this driver said. I have shown Mr. Lewis stated it was his driver. I want to show what the driver testified in court,. on the stand, as to what occurred on that night when he w7as injured.
“Mr. Yastine: I would like to prove first that the driver testified in the case.
“Defendant’s counsel objects to the question as irrelevant and incompetent; objection overruled; defendant at the time duly excepts.
“By Mr. Talty: Q. What did this driver, whose name is Elstner, say in the hearing of the defendant,— anything as to how the accident occurred, as to how you were hurt ? A. The judges asked him if he had stopped at the crossing, or that if he knowed that he had to stop ; he said no, he did not' know he was on the crossing, or if he knowed he was on the crossing, — something like that. And so the judge said, ‘If you don’t know to stop at the crossing when passengers are on it, trying to get in the cars, the judge said —
“ Q. Don’t say what he said ; I don’t care anything about that. Did the driver say anything> about how he came to run over you ?” A. No, he did not know it.
“ Q. State what he said. A. He said he didn’t know, it seemed like he was asleep on the hack, or didn’t know anything about the whole thing, he did not see nobody, and didn’t see his own horses.
“ Q. Did he say that ? A. That is what he said, he did not see nobody.”
The court gave, among a large number of instructions relating to the law of the case, the following cautionary instruction to the jury: “ The jury are instructed to disregard all testimony concerning the statement alleged to have been made by Joseph Elstner in the police court.” That the testimony of the plaintiff concerning the statement thus made by Elstner, the defendant’s driver, was inadmissible and prejudicial, is not controverted. He is understood to have been testifying for himself in a quasi- criminal prosecution, instituted against him by the city for hi§ criminal negligence in running over the plaintiff. He was endeavoring to exonerate himself merely, and the mere fact that the
The question for decision then is, whether the admission of the testimony is to be regarded as error, for which the judgment ought to be reversed, notwithstanding that the court attempted to cure the prejudice by directing the jury to disregard it. In this state the rule in criminal cases is, that the admission of improper testimony cannot be cured by an instruction to the jury, to disregard it. State v. Mix, 15 Mo. 153; State v. Wolff, 15 Mo. 168; State v. Schneider, 35 Mo. 533; State v. Marshall, 36 Mo. 400; State v. Daubert, 42 Mo. 242; State v. Thomas, 99 Mo. 235. This rule has been established out of the extreme solicitude of the law that persons accused of crime shall be fairly tried. The rule does not hold to the same extent in civil cases. In other jurisdictions the prevailing view seems to be that the prejudice, produced by admitting illegal evidence, may be cured by instructing the jury to disregard such evidence. Bee cases cited in 1 Thompson ©n Trials, sections 351, 723. But decisions of several respectable courts are found to the effect, that even in a .civil case the admission of illegal evidence, which is plainly prejudicial, may be ground for a new trial, where the reviewing court is of opinion that its prejudicial tendency was probably not cured by a direction, to the jury to disregard it. Railroad v. Winslow, 66 Ill. 219; Lycoming Ins. Co. v. Rubin, 79 Ill. 402; Howe Machine Co. v. Rosine, 87 Ill. 105. It is plain
This is well illustrated by a modern holding in the New York court of appeals. After repeated objections to illegal questions had been made and overruled, and the answers of the witness had been given, the party tendering the evidence proposed to have it stricken out. The opposing party declined to accept this proposition, and elected to retain and to stand upon his exception. The trial pourt made no ruling, and gave no instruction to jury on the subject. The former ruling, the exception thereto, and the objectionable testimony, all remained in the case. It was said by the reviewing court: ‘ ‘ The defendant’s counsel had the legal right, after the evidence had been admitted in spite of his repeated objections, to insist upon his exception ; and it was not his duty to waive it, as he would have done by accepting the proposal of the plaintiff’s counsel. So far as the jury might be influenced by the incompetent evidence, the mischief was already done, and would not have been repaired by the agreement of counsel to strike it out. The answer of the witness was strictly responsive to the question objected to, and the plaintiff’s counsel had no right to have it stricken out. * * * . The offer of the plaintiff’s counsel, if accepted, would not have caused the jury to overlook this evidence, when they came to consider the case, and it is impossible to say that it did not have some influence upon them.” Furst v. Railroad, 72 N. Y. 542. The court thus held that the error of admitting incompetent evidence would not be cured by the offer of the counsel tendering it to have it stricken out.
Quite in line with the view which this court took in that case is the more recent decision of our supreme court in the case of Stephens v. Railroad, 96 Mo. 207, 214. That was an action for damages, by an employe of a railway company, for a personal injury, and he had recovered a verdict and judgment in the sum of $8,000. Towards the close of the evidence plaintiff was asked by his attorney whether he was a married man, and, if so, how many children he had. The defendant objected. The court overruled the objection, but, at the same time, stated that the jury must not consider the question or answer in making up their verdict, and especially that
We conclude, therefore, that the general rule applicable to civil trials is, that incompetent evidence •admitted in the progress of the trial may be withdrawn by the party offering it, or stricken out on his motion, or withdrawn by an instruction admonishing the. jury to disregard it so as to cure the error of admitting it. But we are equally of opinion that cases may arise where it will be apparent to a reviewing court, from the nature of the evidence thus admitted, from the other evidence in the case as preserved in the bill of exceptions, and from the verdict rendered by the jury, that the error of admitting it was probably not cured by the 'withdrawing of it, or the striking of it out, whether by the party offering it, or by the judge in directing the
The judgment will, accordingly, be reversed and the-cause remanded. All the judges concur.