*1 MISSOURI, SUPREME COURT OP Payne. Pryor v. filling unexpired limited to the term in the exist- ing appointed What that. office,it would have relator to county if it however, court have done, would appreciated on its limitations understood powers, question. is beside the It is certain that did power attempt did not exercise, exercise, that it power for it have, this court cannot execute [People through legerdemain construction. 'of 104 N. Hall, 170.] Y. may
It be said further that order December 13th, carries on its face, considered, circumstances appearance having good faith not been made in solely public the, in interest. And for that reason a court trying of review not would be warranted give it effect a forced construction. It is rule of public policy, common law, founded in sound “the appointing power rights prerog- cannot forestall the atives of appointing their own successors successors expiring power appoint to office after their itself has (cid:127) expired.” County This rule the Court of Louis St. County spirit, violated if not letter. county As
.. court’s order of December 13, 1922, entirety nullity, inwas its there valid seems to no be why respect reason it could not rescind action its judgment to it. The of the circuit court is reversed. j.} only. All concur; David Blair, E. in result PRUDY A. Agent PRYOR v. JOHN BARTON PAYNE, Appellant. United Railroad States Administration, Banc, July 3,
In 1924. 1. NEGLIGENCE: Penal Stattite. Section Revised Statutes penal Hines, [Following not a statute. McDaniel v. Mo. 401.] -: Evidence: Res Gestae. Declarations coin- need injury competent gestae. cident with-the in order to be as res After companipns deceased and his had crossed a track at a railroad public them, crossing, deceased, man, men “You an old go on; They walking I I walked have had all the care about.” near-by pasture, on to while view some cattle in a there *2 passed. They in- train after the returned in four five minutes or' jury, gentleman twenty lying and feet from the found the old about track, side, up, his his arm head to one knees drawn his twisted public bleeding, pipe and his hat and in the middle immediately road, approached They about three feet from track. the come,” him, said, for, then and “I am for time to he done all and inquiries concerning his in answer from the manner of them legs injuries crossing his that the track he told them while f^ave him; way; get across, that that and train he couldn’t the struck away; time a that “had worlds of he saw the train half mile legs way.” it,” given He two “hadn’t to have made if his died days gestae, Held, verbal or later. that these statements were res acts, accident; ques- part since the and of the occurrence or and a statement, suggested voluntary his answers were his first tions acts, parcel the and a and of the same verbal thereto were testify companions properly permitted what state- the two court Leahey [Following time. and made at that ments declarations he Martin, Railroad, 514.] v. 124 Mo. Mo. and State 97 Jury: See on Track: Proof. —-: for Failure to Deceased 3. Case all, engineer at neither fireman nor saw deceased The fact that the way approaching right or of a traveled on the track either or t¿e happened, public crossing, when it when accident' knew him, lying they they seen down or stand- would have had looked ing up, the mile before the train reached for more than half ring crossing, they the bell or sound the whistle that failed to carefully by law, required watch- that were not is evidence as ing crossing; might persons on and further be the for who out stopped thou- have been within one train could that the evidence numb, legs feet, were within that whose stated sand deceased, gave legs him the train struck that his minutes after or five four gotten the of time to have across he had “worlds” and that given way, evidence, legs in view of a ver- not is if track his appeal given plaintiff, favor- be the most which must for dict suscepti- plaintiff reasonably interpretation which it is able ble, carry jury case humani- and is sufficient tarian rule. Crossing Signals: Presumption of Due Care: No -: —:—:
4. made within four or of deceased Inference. If the declarations injury gestae, res not admissible as after the five minutes any of incidents connected the accident saw no witness contributory neg- guilty presumption it, that he was is public crossing; upon ligence going at a railroad track 304 Mo.—36. SUPBEME COUBT OP MISSOUBI, being given, signals there evidence that no were and the requiring given, presumption statute them to be give proximate injury failure to them was the cause his when train, company struck burden is on the railroad contrary, being showing show to the there no such cannot give statutory held as matter of law failure to signals death, was not the cause but the case is one for the
jury. Death, Evidence, Headnote 1: 222. J. sec. 2: C. Headnote 22 C. par. Cyc. Railroads, 1083, 1129; Appeal J. 545. Headnote 3: Error, par. Death, par. 4 C. J. 2834. 4: J. Headnote 17 C. Appeal from McDonald Circuit Court.—Hon. Charles L. Judge.
Henson, Affirmed. *3 Evans,
W. F. O. R. Puckett and Mann & Mann for appellant.
(1)
petition
The
no
states
cause of action. Sec.
brought,
4217, B.
under
1919,
which this action is
S.
entirely penal
compensatory
not
in' any amount.
v.
S.
Bailroad,
Grier
228
454. No
can
W.
action
be main-
against
Director
tained
General of
Bailroads
Bailroad
United States
Administration under a state
penal
By.
Pac.
statute. Mo.
Ault,
Co. v:
Beeves, 1924. 563 v. 172 Mo..654, 672; v. Barker Hendricks, State 1, 11; Mo. Railway, Railway, 143, 147; Mo. Grant v. Mo. 126 172 v. Ruschenberg Railway, App. v. 161 341; Mo. 334, 70, 79; Railway, App. Leahy Dunlap 145 Mo. 221; v. v. (b) Excluding Railway, 165,172. the statements Mo. hearsay gestae not of the there of the deceased res allegations support negli- no evidence remains recovery by building gence. cannot A inference every upon but inference must be rational inference, infra, fact, from Cases facts, deduction evidence. properly (c) of deceased were ad- declarations If the defendant’s demurrer should evidence, mitted wholly the evidence -is insuffi- because been sustained prima-facie pleadings. ease under the make a cient support testimony the contention that de- does The upon when state- the track struck. His ceased was pilot This struck beam. he was ment was that standing impossibility, physical when unless 79; 224 S. W. Hamilton v. Frisco, v. struck. Justice Railway, 240 Railway, 507; v. 714; Baecker Mo. 250 Mo. Railway, Burge Railway, 522; v. 249 Mo. Rashall v. Railway, v. 842; 187 S. W. Grear Carlson 94;Mo. Railway, Harvey, Mo. McGee 780; S. 177 W. Sturgis Sturges A. and John T. J. Johnson,
Leo E. respondent. petition (1) of action. states a See. cause plaintiff, only which this under *4 statute R. S. is 1919, plaintiff similiarly recover any situated, could or damages other injuries by sustained defendant from the resulting the statute in his death. While husband, her pay a as expressly “shall forfeit the words uses penalty as was contem- penalty,” not still such this by appellant. by cited Federal case plated in the the court by purely penal statute classified as the. statute, This 228 S. W. Co., Grier v. Railroad case of court in the compensa- absolutely Federal law, under the viewed is, 564 SUPREME COURT OF MISSOURI, v. tory, though providing recovery even for a minimum reality provision dollars. In two thousand of the quite properly liquidated statute could be termed a dam- age operates upon statute and as a minimum valuation by Legislature, life, fixed human in cases where n wrongfully negligently (2) prop- taken. The court erly by the demurrer overruled filed defendant. Where might plaintiff’s right reasonable minds differ on of re- covery, when the evidence is viewed the most favor- light plaintiff, able a demurrer should never be sus- Brown v. Quercus tained. Lbr. Co., 209 314; S. W. Beck- Jly. Kort-Kamp App. erman v. Co., Mo. 279; 175 Steffens (a) properly 143 v. S. W. 1101. Fisher, The court ad- immediately, mitted statements the deceased made i. within four or five e.; after the minutes, accident, to approached Alburty, who Reber first while him, along right-of-way, position ditch, condition where thrown the train. These statements preclude possibility pre- are of such nature toas design, meditation and or intent to fabricate or formu- upon might late of fact which the deceased statements damages. spontaneous recover Instead explanatory part (verbal of the cause and constitute a litigated acts) explain clearly of the act itself, and important vitally true and causal facts which could in brought Leahey no be other before the court. v. Ry. Cas & Fair Ave. Grounds 97 Mo. Co., 165; Jewell Mfg. App. Vaughan v. 555, '559; 166 Mo. Co., v. Railroad App. Feighner, Co., 177 Mo. 174; Enithwhistle v. 60 Mo. Ularriman v. 214; Stowe, Mo. 93, 95; 57 Brown- Ry. ell v. Pacific 47 Mo. Co., 239, 244; Stoeckman v. Terre Ry. App. Haute 15 Mo. Co., Giles v. 514; Co., Railroad App: Casualty 24, 34; 169 Mo. Greenlee Co.,. Mo. App. 303, 308; State v. 124 Mo. Martin, 514, 524; State Hooper Mo. Gabriel, 631, 639; v. Insurance Co., (b) App. 209, Mo. If the of the statements de- constituting ceased are excluded gestde, then res this ease should reversed remand- *5 1924. 565
Pryor Payne.' v. permit plaintiff upon go jury so as to the- ed the circumstantial evidence. The record shows that the employees operating ques- the train in defendant approached passed public over the tion, and injured, where the and without deceased was struck signals statutory giving any Peeping and without crossing. a lookout ahead down the track at such This prima-facie presumption makes a The of reason- ease. plaintiff’s on able care husband him attends proof contrary, by positive until overcome to the pre- apparently is unable to overcome this defendant sumption. 544; 530, 214 Mo. Stotler Railroad, McGee v. v. 137, 146; v. Green Railroad, 107, Railroad, 200 Mo. Excluding as. 192 Mo. statement 131, 143. deceased’s injury, being there of his no the circumstances n eye presumption exer- obtains witnesses, the negligent, care until unless cised due .by presumption to the evidence .con- this trary, is overcome neg- contributory there no evidence of is here Petty ligence. 320; Stotler v. 306, 88 Mo. v. Railroad, 164 Railroad, Weller Mo. 146; 200 Mo. v. Railroad, Buesching Crumpley 152; Mo. Railroad, v. 198; Light Mo. Co;, Gas damages for the- death SMALL, C. Suit Pryor, struck husband, W. A. husband. Plaintiff’s freight Rail- Francisco Louis-San train on the St. way, being D. Direc- operated Hines, while Walker day about November, 1919, General, tor the 23rd n injuries from his died He o’clock the afternoon. two days at the cross- occurred The accident two ing afterwards. highway public about a mile said railroad County. town Ritchie in Newton east of the petition when the train states, effect, sixty de- and the distant, rods one about hundred just stepped track at railroad on the ceased becoming numb legs crossing, gave him, beneath helpless railroad leaving track, him useless, SUPREME MISSOURI, COURT OP *6 peril approaching in imminent from the train; de- operated fendant’s servants train in a man- said careless approaching’ crossing passing ner, and over said at a speed twenty-five twenty per of or miles without hour, any maintaining giving a lookout and without ahead, signals approaching crossing, on or travelers required by by law; that said servants or the exer- saw, cise of seen, reasonable care the deceased on could crossing helpless said by in in sufficient such condition time ordinary the exercise of care have slowed down stopped striking and the train but that him; without said charge negli- servants in gently, train of said locomotive and speed, against with undiminished ran train wounding the deceased, so him that on the he died 25th day prays judgment of 1919. Plaintiff November, damages the sum of $10,000 and costs. Payne, Agent
The answer was filed John Barton Railway of United States Administration, and contained general plea negligence contributory a denial and a of of the deceased. plaintiff’s evidence tended to show: The de- past seventy-two years ceased at the time of his death was age. of On November he left the home p. step-son, Alburty, W. H. about two o’clock withm. Alburty, accompanied neighbor, Ed Reber, Alburty’g age, eight years little seven son, to see Alburty kept pasture some cattle which owned Alburty’s about a half mile south of his home. home public highway, was on the which 'ran north and south quarter question, over and about a of crossing, they got mile north of this When about crossing, stopped feet south of the the deceased go road “You men said, on, have had all I the walk- ing Alburty I care about.” Reber and and his little son then went on south down the road about 336 feet, and then east about 534 where the feet, to cattle were in pasture, stayed couple there a of minutes, and then proceeded they seventy- returned west. After had west Pryor they freight hundred train com- feet,
five ing one saw engine then about 200 from the west, crossing. They to walk or 250 feet east continued leisurely road, ordinary public west to an point to the where then turned north and walked Pryor. They nothing They then him. left saw They proceeded crossing. to the railroad first north Pryor’s pipe lying hat in the middle of observed public rail. feet the north about three north of road, apparently uninjured. lay up, The They with the crown hat twenty Pryor feet north next saw about crossing. north rail northeast of lying partly arm, on his left and left side *7 track three or four the level of the about he below was evidently being fill that track there on feet, height. lying generally his and west, He was east body, up his his head drawn was knees were toward right. railroad em- The in a kind of a twist to place scraped about two feet of it bankment had off long from north rail. The about eleven feet wide, by Alburtv and found in condition deceased was this they first saw four or five minutes after Reber within fifty freight hundred feet one hundred two vtrain they crossing. they im- him, As soon as saw east of got up approached mediately to and when him, for all time to come.” “I am said, he done him, Alburty remark, made then after deceased testified, happened, “I as follows: asked ‘What him, ‘ ’ shape you ? And he said, here in this kind legs gave my crossing the track me; train struck while you way get ‘Did said, in time.’ I and I couldn’t off over half the train was see train?’ He said, ‘Yes, it, made time have to to Ritchie. I had worlds way’. given if my legs was “Q. said, if hadn’t What up anything, to to lift him see A. us next? He asked and he asked we if stand on his feet, did, could he hung legs a kind of drawn us position him down. His to leave body, not them down he let towards his did SUPREME COURT OF MISSOURI,
Pryor v. Immediately ground placed at all. after we him back spoke lying, pains, been he where he had of his and we up, spoke hurting braced him he back his him so. position, inwas he "Whilehe said his back hurt him, perfectly and that arm was left arm. numb, That clothing away arm naked had been tom was bleeding and it ’’ was some. It about was ten minutes after the step- accident the deceased until was at the home of his Alburty, put where he was taken and son, bed. He was everything knew conscious and at that time, and for afterwards, about two hours when he became uncon- happened Sunday, The accident scious. and he died following Tuesday regaining without consciousness. day bright, On the clear hurt, and warm, dry. standing the railroad track was While track a half mile center of the west of the Al- burty lying* crossing. man was able discern a flat on the Alburty cross-examination, that,
On when he Pryor, up first nothing the accident, went after "deceased said legs, being* in his about or not able numbness move a And from what muscle. the deceased said to he did know whether deceased him, the track or some little distance from the when he track, first saw fifty th4 train. When back from track feet, deceased looking could seen the train west towards away train if the had been half a mile Ritchie, at that *8 crops something time. If there weren’t there, he could crop seen it to Ritchie. There had been have a corn way right probably fifty
there. The of feet on each from the track. He side could see train to Ritchie. Don’t think he could have seen train one- crossing half mile west of the until he inside of the was right way, got of on of corn field. After he .account point, fifty to about feet from the there track, would nothing be to obstruct of train his view the until after got crossing. on the Alburty,
On, among re-direct other examination, things, up after been Deceased, testified: he had raised
Pryor injured, he was “If let down where next said: I anything happened would like this had known come.” told not have him that would would “I I me, I happen anything, for him if and I not have had asked any, pains seemed to relieved and asked him if he his part of the train hit and he ‘It. him, what was said, knew the cow-catcher was bolted to.’ beam He the wooden plenty again, repeated that he saw the train and had of give legs hadn’t under him. I think, if his time, they became numb. He told me, he said after time, far he was from the track when his him I asked legs gave how just way, stepping- he was of act Q. track. was train rail of the Where the south over At if A. the time he he said? was at that time, say sir. A. He didn’t Yes, where Q. the track? was.” train plaintiff testimony of Ed Reber for was
The to the' Alburty, as that of witness Reber effect tes- same (the among things, tifying, follows: “He other as de- ceased) had worlds time to said he track cross coming, get and he could not the train off he saw when legs gave say his where he was when He didn’t time. way. he went to he had He when cross said, track, legs get but his failed him.” across, time to worlds objected excepted duly to the admis- Defendant made after in- of deceased his declarations of all sion gestae. jury, res plaintiff: got Wright He to the testified
Dr. Alburty about 4:30 in the after- was, where home, day injury. his He was bed and un- on the noon arm were broken. A of his left Both bones conscious. top slight his head on the left on laceration puffed leg on back seemed to be Skin found. the broken arm. up side as Yisited the same little, again. morning him and examined His next him the swelling. Couldn’t a little discoloration back showed injured spinal or not. cord whether tell something place like the size the hand. back *9 SUPREME COURT OF MISSOURI,
Pryor present possibly notWas when he died. Think death was injury injury spine, pos- from some internal to the sibly pre- from the shock. ITad treated'him twice in the years ceding legs. two for numbness in the plaintiff: Deputy A. E. Thane testified for He was County Surveyor, surveyed and had the Frisco Railroad crossing question. grade from Ritchie The per grade not exceed one-fifth of one does cent. The for crossing a half mile west of the is less than one foot in purposes, six-hundred. To all intents and crossing from the Ritchie, the track runs due east and west, signal depot and from the tower at the at Ritchie is 5563 feet..
Being Alburty Pryor re-called,.. testified: arrived morning, at his house about eleven o’clock that general condition, far as he able to ob- point until him it, serve after he left at the 207 feet south good. of the track, was plaintiff: freight
S. Carden W. testified The question through According train in train. to the stopped Granby. Granby eight time-card is miles from Neosho, and Ritchie thirteen is miles. The run- forty-five ning time of the train was minutes from Neosho engineer’s to Ritchie. The seat the cab is seven and eight ground. pilot one-half or feet above the The beam top pilot is at the and set back about two feet. engine pilot The on that about four and one-half feet ground. you above the The cow-catcher would strike about the middle of the back.
S. A. conductor on the Gates, train, testified for plaintiff: engine thirty- train The consisted of an freight tonnage having two cars, tons after 1450. leaving Ritchie. On cross-examination he said: He injury day first learned of the after day they traveling accident. He remembered that were high speed up making at a rate of and were time leav- ing thirty-five running forty Ritchie. train was leaving public miles an hour after Ritchie to the cross- *10 Pryor Payne. happened. require
ing It accident would a the where stop and it feet Yithin which train, thousand emergency feet five hundred after brakes would he you speed could notice the of the train set before were begin slacken. to' plaintiff,:
Sidney testified for It a warm Adams was porch, sitting day pleasant he was on and before the his passenger pass'about train and saw two accident, freight up. freight train followed it The and the o’clock, passenger. ten minutes behind the over He train wasn’t twenty-seven years, track there for beside the lived had speed good a deal, of trains had noticed and generally going. about how fast a train is From knew watching passing, general trains observation, (the opinion, freight-train inquiry, that train in his deceased) injured going twenty-five was about which speed change any and the didn’t hour, an from miles got past until it he saw it time his view. the first He got the'-crossing. half a mile before it it for noticed crossing sixty-six right at there feet thirty you on either can stand side the track wide, gave down to Ritchie. The train see clear no feet and ring signal, nor whistle, did not for bell, half crossing. or more before reached a mile plaintiff: testified for He Arthur Hutchinson engineer thirty-seven years a locomotive been engine known as with the 1300 familiar was class injured type in the train which use on deceased. freight the circumstances under shown in train, Said question (which were described asked evidence speed twenty-five per going him), at a miles hour if ques- dry track, a half mile of the within on a safety stopped, equip- been could tion, space on the within the of four train, men ment and going poles, telegraph feet. And if or about 520 stopped ¿miles have been forty an it could about hour, telegraph poles, approximately space of six engine engineer on could have feet. The his cab SUPREME COURT OP MISSOURI, y. that-crossing, day, pretty a man good, seen a clear away, quarter enough distinguish of a mile that it was any person, without trouble. Defendant’s evidence was as follows: freight R. E. fireman on the Hoover, train that Pryor, struck testified: The first he knew of the accident days happened. four was or five after it He could not re- doing call the and couldn’t recall he incident, what being straight prob- at the time. But he track, was ably attending to fire; if not, on his seat looking ahead. seat at the left His window the *11 keeping and when he was on his he cab, ¡ seat, a look- crossings. lying ahead out at all He saw no man on or crossing trip, any near the at track this that or on ob- ject on the track that could be man. a engineer Ash,
E. E. the on train that the the caused injury, nothing testified: He knew of the accident at happened. anyone the time it He didn’t see near the crossing. doing, He did not know what he was before approached any crossing, he the more than that he was attending engineer. to his duties your engineer ap-
“Q. What are duties as an proaching crossing a Well, kind? A. I am al- ways looking anything if ahead to see there is there, and I crossing away when ascertain that there is no one at the might crossing, my eye around take I from place .something at that time and turn to about the engine. keeping have other a I duties lookout besides engine sup- I ahead. have the to look out and I for, am posed any back look at the train sometimes to see if any are cars broken down or boxes. At hot times, we stopping signals. between to take care of stations I to watch the have water. you
“Q. do -What have to do with reference to watching gauge try the water? IA. cocks and at look glass. keep very necessary It is the- water aat height nothing certain crossing in the boiler. I around the saw
or the track. At that there is a board Vol. crossings, all like the rest of the crosses
fence, which forty-five-degree right angle a at and comes np lying If a man to the track. of the north north point, it rail near the road at that would road, very to see him feet be difficult when more than few might the-crossing. lying to the north from He close danger being struck rail of the track and some speed might portion engine, at a like that, wing-fence could ob- not notice man there. your approached crossing, I we struct view. this As judge running forty miles would were an hour, we stopped require it about feet us to would safety regard having that train at that time, employees. running If the train been train and stopped twenty-five an it could have been hour, at miles duty something It of the fireman like 800 feet. engine, keep a on the left-hand side of the lookout putting isn’t in fire.” when he doing. his fireman
He what didn’t remember straight figured usually fix fire on a' The fireman straight between Ritchie That was a track track. crossing. Running forty an train miles you could no- or 300 feet before would be 200
hour, *12 checking the emer- at after the use of all, train tice the twenty-five running an miles gency. hour, at If it was “get 100 feet. checked within the train could witness speed. beginning whistled to check the I notice it I would crossing.” post whistling of the west the at testimony, appellant, Bar- John At close of the the peremptory Payne, the effect instruction to asked ton pleadings case, in the the evidence under the that, against de- plaintiff recover to was entitled not instructions Other which the court refused. fendant, they in given parties, set are not out for both but were appellant’s in mentioned record, of the nor abstract the brief. plaintiff for cf jury in favor found a verdict
Thé trial was Judgment new thereon, entered $2500. MISSOURI, SUPREME OF COURT appellant, requested refused. The ease was there- Springfield upon appealed Appeals, to Court of court. certified this that court by appellant, point I. The made that the Director liable in case, not this because General 4217, Section brought, which the suit 1919, Revised under is Statutes penal is statute, not well taken. In was a McDaniel v. fully we 471, 292 Mo. S. W. Hines, considered and held that was untenable. contention, this by appellant urged II. It next that each is every or declaration of the after statement deceased, by Alburty injured, testified to was er- Reber, part roneously evidence, admitted because not of gestae. agree cannot res We this con- ResGestae. £en^on_ that the settled declara- weq jg injury. be not coincident In need tions intervened between the five minutes declara- four or case, injury, in view of their nature which, tions and they under were we made, which the circumstances do long part regard them as time as exclude as so not spontaneous gestae, were not or that of the res in such cases. within rule verbal acts Railway Leahey Mo. result Co., In up by J., was summed the authorities follows, Black, page 172: that there is still some authorities show di- “These versity opinion, rule, to the and as to both as given application Care must be taken rule. of a gestae large or too of res too contracted. make field reasoning to be that the declaration is, The better point gestae, not be time, need coincident, res enough proved. It is with the main fact be clearly can, the declaration connected that two are so spontane- ordinary said to be the affairs, course The declaration cause. then ous exclamation real *13 may a main a and well be said act, verbal APEIL TEEM, Again, subsequent if fact transaction. declaration together, main and the fact at form a con- issue, taken tinuous then the declaration admissible. transaction, depends upon therefore, the nature character Much, question; may of transaction in it often he, continuing he is, of a character. It cannot said subsequent mere will itself furnish suffi- declaration of connecting Applying cient these declara- circumstance. present hoy to the that what the tions is clear said ease, got picked up, he the car, as to how under when first injuries. properly cause of his received as evidence by accident, He then at toas the scene surrounded persons calamity, and his who declarations witnessed though made the acci- acts, then made were verbal after happened. after what he had been dent But he had Keating, persons after Mr. to the house of removed separated, an- with the accident had connected questions got hurt, how he should have been swer to as but narratives of what answers were These excluded. transpired, such. The time and intended as made making declarations is thbse between the accident they from the are disconnected it is hut true, short, ours). (Italics fact.” main opinion by l.Mo. c.
In v. Martin, State adopted laid down Whar the court the rule J., Gantt, following quoting there extracts Evidence, ton on ‘‘‘ (there gestae may approval: he res from fore) circum says ‘as those Wharton, defined,’ Dr. undesigned inci automatic stances which are particular litigated which are ad act, aof dents incidents These act. of such when missible illustrative lapse separated time more from the act may They may appreciable. see, as we will consist, less any sayings doings event, one absorbed may comprise they bystander; participant or whether things things In ... done. well left undone as re causal immediate must stand words, other inter- broken relation to the act—a lation *14 MISSOURI, SUPREME COURT OF Pryor Payne. v. seeking voluntary position wariness, individual of [1 for itself.’ Law evidence manufacture Wharton’s general This the statement of 259.] sec. Evidence, the of this court and has indorsement rule received Supreme Jersey in Hunter of New v. State, Court Supreme Pennsyl- Court of L. and of the 40 N. J. 29 Atl. 272.” Werntz, in the recent case of Com. vania many Judge reviewing authorities, other After in the case before him, law and the facts states the Uantt (l. 529): going a citizen “Here we have c. as follows: night. by is a ruffian in the He assailed home to his Instinctively he ‘Police, the heart. cries, stabbed to qy stagger ‘I’m faint out, is seen Police,’ and ground. gone,’ ing,’ and falls to the me,’ ‘Catch ‘I am relief, to these facts runs who testified The witness physician Knowing him with blood. covered finds only he runs street, and a down a block resides half rings is bell and at once answered. house, to his injured man. He runs back to come. doctor cannot finding arrived and an officer has interval, short In this inquires, bleeding prostrate to death, ‘Who the man niggers, dying by ‘Two man, answered did it,’ is sug any yellow made one has fellow.’ No one a’little Judge by statement gestion. last As Bigelow, may the sentences uttered be deemed well They immediately stab ivas inflicted. fatal after presence They uttered are narrative. not mere police, for the cries who heard his who has a witness stagger blood, and fall covered with him has seen bleeding found him his relief, at once went unsupported mere narrative not, then, It was death. principal in direct connection but it is fact, by the explanatory it.of No sensible man and illustrative it think reject in his own We evidence such would affairs. competent.” holding no error committed court ours). (Italics by and also J., Among cases cited other Black, Mosley, 8 v.Co. Wall. case of Ins. J.,
Uantt, question where the was, whether the deceased met his death accident. In the lower the wife court, and son night, testified that he left his bed and that when he back he said he had fallen downstairs and .carne complained being hurt. He died a short time there- Supreme after. The Court of the United States, delivering opinion, J., held declaration Swayne, cotemporaneous not be need with the act and that such *15 gestae. statement of deceased admissible as res was principle foregoing We think the in announced the authorities and sound should rule this case. There is no contention the declaration of the deceased, having spoken by which he first made without been to Alburty either Reber, or “I am done for to-wit, for all spontaneous time to not a exclamation and come,’’.was subsequent declaration. It is true that the declarations they questions, im were made in answer to made but were clearly spontaneous mediately following exclama the first companions the last tion persons who were deceased, persons injury, the first him and with before his injury, and suf him while was still after his injured, place within a and fering where he was may mind well its occurrence minutes after few consequences injury and its with the have been obsessed for all “done for that he was the idea dominated no there is circumstances, such Under time to come.” and such reflection for deliberation chance or little spon element deprived not declarations principal or from separated taneity from fact or so prevent them spontaneous as exclamation, first make them mere being thereof, continuations from declarations previous All of event. of a recitals place and under time same made at the were except made in were some circumstances, same the Martin rule questions, under which, answer was also admitted supra, the declaration where Case, as them bar not question, we does hold, to a in answer parcel of the part and evidence, all a were because n Mo —37. MISSOURI, SUPEEME COUET OP spontaneous exclamation first made tbe deceased, part prin was a of and connected which them with the cipal as was held the declaration in the fact, Martin impossible particular any it is to fix Case. While time which the within declarations must be to be made, ad part gestae, many may missible as res cases where four or minutes, be cited five case, as great great many too held cases are time, collected Rapids Paper the elaborate notes Bernard v. Grand (N. S.) seq., 42 L. E. A. Box l. c. 953 et where four Co., or five or more minutes after the accident held great. too following appellant
Learned counsel
cite the
conflicting
as
with the conclusion we have
cases
reached:
(Mo.)
In
Reeves,
State
S. W.
that'case,
n
sought
gestae
act
to be introduced
res
happened
principal
an
hour
two after the
fact,
clearly the result of
reflection.
deliberation and
To
(p. 1031)
the court
that the two
admissible,
need
nearly
not be
ly
but
so “that the one is clear
concurrent,
so
influenced
the other”
“must occur while
*16
party is under the immediate influence of the scene and-
surroundings
the
which was not
in
occurrence,”
so
that
Railway,
but
so in the case at bar.
In Redmon
is
v.
case,
opinion being
by
185 Mo.
the
written
Gantt,
removing
the
while he and another were
J.,
conductor,
injured passenger
the
car,
from the
accident
by
coupling-pin falling
was caused
from*the car
a
into
by
question
and the remark was elicited
slot-rail,
injured party.
previous
no
There
unsolicited,
was
spontaneous declaration with which the declaration of
immediately
part,
fered in evidence
connected and
was
Ruschenberg
in this
This is also true of
v. Rail
as
case.
.
Without reconcile all the cases, *17 even of this think court, we that the well-considered cases Leahey v. Mo. Railroad, 165, 97 and State v. Martin, principles govern- Mo. 124 announce sound of law ing admissibility injured parties the gestae. of declarations as res point respondent.
W'e rule this for 580 MISSOURI, SUPREME OF COURT v. admitting
III. it But, that, is said statements gestae, injury as in the deceased after his there is res testimony go jury s’a®c^en^ to the to make for case humanity plaintiff’s under the out even case, Jury. deny must also doctrine. this contention. We engineer fireman and The fact that both the did approaching’ or not see the deceased either on all, right way, or or of the accident it track happened, knew when plaintiff’s and the
and that evidence circum they tend to show that could have case, stances they-looked him with reasonable either care, seen right way, or for more than half mile on the track they crossing, they failed before reached ring required bell or sound the whistle, either negligent in not care were law, evidence persons fully watching who for the for out right might on the have be thereon. Travelers public thereon, tracks and cross over the railroad road duty enginemen to exercise-reason and was injuring while avoid them so care to discover able doing. Ry. 189 S. Co., v. Mo. W. [Jackson Southwest Sturgis, (Mo.) 221 rel. Mo. S. State ex 381; v. Railroad, & v. S. W. W. Central Co. 91; Coal Coke (Mo. (Mo. App.) 187 S. W. 914; West, Underwood Logan Railway, App.) Mo. 611.] 84; enginemen could have seen is evidence that the There bright, straight track and level deceased twenty-five forty going day, or in whether clear time, twenty-five going especially but if hour, an miles Adams, the witness an as testified hour, miles injuring stopped train without checked deceased. en- that the is no evidence that there it is said
But, help- peril, ginemen that was seen him could have proximity dangerous thereto, track or less time to have saved is evidence think there him. We *18 Pryor Payne. point. physi- jury by There his oil that is evidence
tlie troubled with of that he was twice numbness cian year day legs injury. his he or before On so nothing legs, prior injured, about to he said his while injury, stopped journey on the his com- his panions, he track feet south of the railroad
when 200 walking go on. I have all the care “You men I said, seventy-two years past age. of It is He was about.” right way likely fast firm over the of not he did walk way, legs gave crossing which the de- before his or the charge the train care due servants fendant’s how the acci- He when asked have observed. said, could happened, that him, the train struck while dent way get legs gave and he couldn’t the track his train when it over half in time; off he.saw way that he had “worlds” have Ritchie, time,to way. legs given proper inter- hadn’t made if his it, pretation track, that he was on the is, of his statement way, legs gave then so the train was far when his “worlds’’ of time to cross the from him that he had tracks way. legs given danger, get His had his out of language, must circumstances be all the facts plaintiff interpretation given the most favorable susceptible. legs gave reasonably they If which they did, he must have as he said the track, while position on the down a recumbent or crouched fallen falling, enginemen him have seen would and the track, they the track, had care- or recumbent or thus crossing, fully their him on the watched out for question jury. duty for the that was a least, do. At plaintiff’s question jury evi- for the under It was also thus dis- whether was circumstances, and all the dence, danger a sufficient zone the track or abled on within length enginemen have discovered his time for the observing peril, care in exercised reasonable by stopping injuring him in time have avoided him, checking tended to show train. Plaintiff’s evidence COURT OP MISSOURI,. SUPREME
, absolutely due the train could have been that, care, space stopped within the or 530 feet, and checked space, might prevented up ain shorter which striking train from him with such force as to cause his attempted which was not done or but done. death, *19 enginemen that the could seen a man Also, have prostrate away. the track half a mile point against appellant.
We rule this IV. let us assume that are in we error Furthermore, our as to conclusion that the of statements the deceased gestae admitted evidence were of the res and that should have been excluded. In Presumptions. plaintiff’s being husband dead, eveil^ presumption guilty is that he was not the tory negligence. contribu
[McDaniel v. Hines, Mo. 201, and seq., l. v. Mo. c. 198 Railroad, Weller et cited; cases independent of cited.] cases deceased’s Also, dec the other facts and shown in larations, circumstances that show or tend to show evidence would killed public crossing. plaintiff’s The the train at evi statutory signals to show that the dence tends given. In such state of under our facts, were not stat (R. 9943) requiring.such signals, sec. ute S. there give presumption failure them is proximate is the proof injury, burden of cause contrary. upon defendant railroad to is show If of the deceased admitted in case the declarations eye having there been no to' witness excluded, any part there it, would be no evidence, accident a matter of evidence, law, much less conclusive statutory signals give not the the failure cause plaintiff’s the demurrer husband, of the death of plaintiff’s properly evidence would still been 214 Mo. [McGee 543-544, Railroad, overruled. cited.] cases judgment Lindsay, affirmed. concurs. G., is 1924. APEIL TEEM,
Yol. 304] v. Wurdeman. State ex rel. Darst PEE opinion CURIAM: The foregoing Small, All of in Banc. as the Court adopted C., opinion Graves, J., Woodson, J., G. judges concur, except who dissent. DARST et al.
THE STATE ex rel. JAMES W. Judge A. WURDEMAN, GUSTAVUS Circuit Court. July 3, Banc,
In 1924. Judgment Pleadings: Facts of Case. 1. PROHIBITION: Motion for application prohibition for In the record consists of vfbere writ, judgment plead- respondent’s on the return motion allegations ings, in the return the undenied the facts stated petition are taken as the facts of the case. fact contained By Trial Not to Suit Court. -: Persons Parties Citizens parties pending contest suit who are not to the election and voters *20 prohibi- court, original may an writ of maintain in the circuit Court, prohibit Supreme the circuit court from to tion in the destroying secrecy illegally ballots. At common law of their necessary applicant writ should be it was sought, against proceeding party which the writ was to the suit prohibition proceed- law, far as it relates to in so and the common Court, abrogated statute, ings Supreme but has not been only prohibition apply parties relating in to the the statutes court. circuit Respond- Anticipating Ruling Trial Court: Disavowal of -: go prohibition unless the trial court cannot ent. writ of ruling contemplates jurisdiction excess its has exceeded illegal anticipate possible jurisdiction. a- rul- be used It cannot court, pending in- ing the circuit elec- relators. Where adverse therefor, application response suit, an ordered contest tion so, ballots, county and he had done to recount clerk report coming “to the contestee filed a motion upon in of report,” impound quash, suppress exclude, and thereafter voters, prohibition, private relators, ask for a writ of citizens trial, report that, alleging is read evidence if said making destroyed, allegations no secrecy but will ballots of their motion, judge overrule said which has threatened trial