94 Mo. 84 | Mo. | 1887
This is an action brought by plaintiff to recover damages for the death of her minor son, alleged to have been occasioned by the negligence of defendant, and the case is before ns on defendant’s appeal from a judgment rendered, in favor of plaintiff, and. the action of the court in receiving evidence, and in giving and refusing instructions, is assigned for error. The case has once before been in this court, and is reported in 81 Mo. 434, from which it appears that the court, after holding that the facts in evidence warranted the trial court in submitting the case to the jury, reversed the judgment for error committed in giving instructions. On a retrial,' the error which led to the reversal of the judgment was avoided, and as to the •point ruled upon in the opinion, gave instructions in conformity with the views there expressed. The facts disclosed on the second trial are substantially the same as those commented on in the opinion alluded to, and for that reason, a discussion of them here is unnecessary.
It is assigned for error among other things, that, on the retrial, the court, over the objection of defendant, allowed the following testimony of Dr. Loomis, as preserved in the bill of exceptions taken and filed on the first trial, to be read as evidence, viz: “I reside at Easton, Mo. I knew Horace Scoville, deceased. Saw him immediately after he was killed. There is a platform on the east side of the depot.- The street upon which he was killed is immediately east of this platform, and is sixty or seventy feet wide. He was killed about forty feet east of the platform. The platform is fen or fifteen feet out in the street. The depot is on the north side of the railroad track, and the switch is south of the main track. The platform is on the south side of
Cross-examiNed: “I am son-in-law to plaintiff. Deceased at the time of his death was about seventeen years old. His eyesight and hearing were both good. He was in possession of all his faculties, and was a bright boy.”
This evidence was objected to as being incompetent and because no sufficient foundation had been laid to authorize its reception. No other foundation was laid for the introduction of this evidence, than the evidence of Loomis’ wife, who testified that three years ago Loomis had a stroke of paralysis of the right side, that it was six weeks before he could speak a word, and had never recovered his speech, except so far as a little-conversation was concerned ; that he could neither write nor form sentences; that he could only write the names of people he was familiar with; that he could talk enough sometimes to say sometimes as many as five words that have a meaning to them ; that he had a habit of saying yes for no, and very often they had to write it down for him before they could tell whether he meant yes or no; very often she would ask him a question, he would say “yes,” when she knew he meant “no.” 1
It is laid down by Mr. Gfreenleaf, that, on the trial of the same cause of action between the same parties, the testimony of a witness given on a former trial may be received, if the witness is dead, or out of the jurisdiction of the court, or cannot be found after diligent search, or is insane, or sick and unable to testify, or hag
It is, however, insisted by counsel that this error should not work a reversal of the judgment, inasmuch as there was other evidence corroborative of Loomis’ testimony. While this is so, there was also, as we understand the record, the evidence of two witnesses as contradictory of it, in so far as it relates to the fact of the plaintiff’s son being run over and killed at a public road or street crossing. Two witnesses testified that he was run over and killed east of the road crossing, one of them stating the distance to be fifty or sixty feet east of it. The evidence of Loomis shows that he was killed on the street crossing. In this state of the evidence we cannot say that the defendant was not damaged by the admission of the evidence.
Many other objections have been made by counsel,
For the error noted, the judgment will be reversed and cause remanded.