159 Mo. 143 | Mo. | 1900
Action for damages for personal injuries.
Briefly stated the petition is that plaintiff, a boy ten years old, engaged in selling newspapers, was received on one of the street cars of defendant corporation by its servants in charge thereof, who permitted him to ride on the car for the purpose of selling newspapers, as was their custom to do; that on this occasion plaintiff was on the run
The testimony on the part of plaintiff tended to show that the accident occurred on Eranklin avenue in the city of St. Louis, along which defendant railway company’s track is laid; that defendant Moll has a grocery store on the south side of Eranklin avenue, between Sixth and Seventh streets, in front of which on this occasion a delivery wagon belonging to him was standing with the rear end towards the curb and in front of the store, and the horses’ heads towards the track and close to it, with barely room for the cars to pass, the horses not hitched and not attended; that the plaintiff, a newsboy ten years old, had for some time previous been in the habit of jumping on the cars of defendant corporation as they passed along there, offering his
At the close of the plaintiff’s evidence the court gave an instruction at the request of defendant Moll, that as to him the plaintiff was not entitled to recover, and refused a similar instruction as to the defendant railroad corporation. A nonsuit with leave was taken as to Moll, and the trial progressed as to the other defendant.
On the part of the defendant the testimony tended to show that the plaintiff and other newsboys were in the habit of jumping on and off the cars, plying their trade; that the company had often- remonstrated and tried to prevent it, but found it impracticable to do so, and had to submit to it; that on this occasion the gripman saw the boy when he got'on the car, and saw that he passed towards the rear on the running board, but when the boy passed behind him he
The cause was set for trial October 15, 1894, and when called for trial on that day defendant moved for a continuance on account of the absence of one William Elippen, and filed the affidavit of Mr. Galt, attorney for defendant, in which it was stated that he had caused a subpoena to be issued for the witness, who was a resident of the city, but had been unable up to that time to obtain service of the writ. The affidavit stated: “But affiant and the defendant believe that said William Elippen is now in said city, and by prosecuting a search therefor his attendance or testimony will be procured at the next term of said court.” Then the affidavit proceeded to set forth what the witness, if present, would testify to, which was, substantially, that he was a passenger on the grip car, saw the boy jump on the front end of the running board and walk back calling his papers, and two other newsboys also jumped on; this boy passed to the rear of the gripman, and fell off when he was holding to nothing and was not struck by the wagon or mules or anything; that the gripman was looking ahead, and the car was going at half speed, that when witness saw the boy fall he hollowed to the gripman, “Stop, a boy fell off,” and the gripman stopped as soon as possible. When the affidavit was filed the plaintiff admitted that if the witness were present he would testify as therein stated, and thereupon the
The evidence, instructions and arguments were concluded on November 20, and the jury retired to consider of their verdict, and were still in such retirement on November 21, when they sent the following note to the judge:
“Hon. Judge Eisher: The jury can not agree as to the facts in the evidence of the gripman, also the boy’s. We ask that we may have a transcript of the evidence of the above-named parties.
“Yours truly,
“W. S. Bartley, Foreman.
“P. S. — Without that I am satisfied this jury can not agree. W. S. B.”
Hpon receipt of this note the judge showed it to the counsel in the case, and said that he could not send a transcript of the evidence as desired, but that if the counsel would consent he would send for the jury and allow the stenographer to read to them the testimony of the witnesses referred to. The counsel for plaintiff said he would consent, but counsel for defendant refused. Afterwards on the same day the judge sent for the counsel and informed them that he had concluded to allow the stenographer to read his notes of the evidence of the witnesses' referred to to the jury, notwithstanding the objection, but the counsel for plaintiff said that he would not consent under those
There were elaborate instructions given which it will be unnecessary to copy here, because there is only one point in them of which there is any complaint, and that is the court refused to instruct the jury that “the servants of the defendant in charge of its car were bound to exercise a high degree ■ of care in running and managing said car, so as to prevent the plaintiff from receiving injury whilst so riding upon the running board of said car.” The instructions given were to the effect that only ordinary care was demanded.
There was a verdict for defendant railroad company,, which was followed by motions of plaintiff to set aside the nonsuit as to Moll, and for a new trial as to the railroad company, which being overruled, plaintiff has appealed. Since the appeal was taken defendant Moll has died and the suit as to him abates.
I. The court did not err in refusing to instruct the jury that the defendant owed the plaintiff the duty of observing, for his welfare, the same high degree of care that it owed in respect to a passenger. The relation of the plaintiff and defendant to each other in this case was not analogous to that of the parties in the cases, to which we are referred by the learned counsel for plaintiffs under this head: Sherman v. Railroad, 72 Mo. 62; Whitehead v. Railroad, 99 Mo. 263; Buck v. Railroad, 108 Mo. 185. In all of those cases the person injured was on the train or car with the consent of the servant in charge, for the purpose of be
II. Appellant assigns for error the action of the trial court in allowing the defendant to read in evidence the affidavit as to what the witness Flippen would have sworn to.
The subject of continuances is treated minutely in our ■Code of Civil Procedure, aiming on the one hand not to compel a party to go to trial when he has done all that can reasonably be expected of him to procure the attendance of his witnesses, and yet a material witness whose testimony
But in this instance, after the plaintiff made the admission which would authorize the affidavit to be read, the court of its own motion postponed the trial for a month and four days. The affidavit stated on its face that the witness resided in St. Louis, and could be produced at the next term, yet when more than a month was afforded the defendant before the trial would be called, no effort was shown to have been made to produce him, but the court suffered the affidavit to be read. The emergency under which the law would have allowed the affidavit to be read had passed, and the consideration which induced the plaintiff to make the admission had failed. This was a very material witness, profess
The admission of a party under such circumstances to obtain a present trial, does not stand for all time, but ceases when the emergency ceases. If it should be held to be binding a month later, there is no reason why it should not be so held six months later. A month is as long notice as is ordinarily given of the setting of a cause for trial; certainly it is long enough to obtain the service of process for witnesses residing in the city, or to take their depositions if they are non-residents, or at all events it is long enough to ascertain whether or not the evidence is attainable. The court erred in allowing the affidavit to be read over the plaintiff’s objection.
III. Appellant also assigns for error the action of the court in requiring the stenographer to read his notes of the evidence to the jury.
.. The introduction of the official stenographer to take down the evidence in every case is of very recent date and so far as concerns his official duties we must look to the statute creating the office to learn what they are. The statute declares his duties to be, “To take full stenographic notes of the oral evidence offered in every case tried in said court or division, and of all other proceedings when directed by the judge, to be so reported, together with all objections to the admissibility of testimony and the rulings of the court thereon, and all exceptions taken to such rulings; to preserve all official notes taken in said court for future use, or reference, and to finally deposit the same with the records of
But the law guards with a somewhat jealous care the province of the jury, even from encroachment by the judge. The duty to hear and weigh the evidence and pronounce upon its preponderance, the duty to find the facts from the evidence as it falls from the lips of the witnesses at the trial, is the peculiar office of the jury. The juror has a right, and it is his duty to base his verdict on the evidence as he
It has been held that it is error to allow a juror to take notes of the evidence, and carry them to the jury room. This is for the reason that there is a danger that the jury give undue weight to the notes as against their own mem
In Fleming v. Shenandoah, 67 Iowa 505, the jury sent a communication to the judge asking to have the ■ stenographer sent to the jury room to read the evidence to them, and the judge suffered it to be done. The Supreme Court of Iowa held that to be error. That was a more flagrant violation of the rule of good practice than the action assigned for error in the case at bar, but the two cases on that point differ only in degree. It was not suggested in the Iowa case, nor is it suggested here, that the stenographer read the evidence incorrectly. His opportunity for doing so in the Iowa case without challenge was greater than in the case at bar, but the principle involved in such a practice is the same. It is not a question of the degree of prejudice in the particular case, which might be a difficult question to decide, but it is of establishing a rule of practice under which a juror may be unduly influenced against his own judgment and contrary to his own memory of the evidence. If the notes are read in the presence of the court and counsel, and a dispute as to their correctness arises, who is to settle it ? If the judge should say that the notes are correct, and a juror, whose memory is clear to the contrary, should say no, which is to prevail, the notes or the juror’s memory, so far as his vote and his influence on the verdict is concerned? The law has not provided rules to govern the trial of such an injected collateral issue, but the theory is that the jurors must settle such questions for themselves, and the judge should wait until the stage of the case is reached at which he may interfere if he thinks wrong has been done.
IV. It is insisted for defendant that the court should have given its instruction for a nonsuit on the ground of the plaintiff’s contributory negligence. If the plaintiff had been a person of mature years the court would have held him guilty of negligence, but as he was a child of ten years the question of his negligence was one for the jury.
In Banc.
PER CURIAM. — In the foregoing opinion written by