Steamboat Madison v. Wells

14 Mo. 360

Opinion

Ryland, J.,

delivered the opinion of the court.

From the above statement, it becomes necessary for this court, to look into the action of the court beiow in excluding the testimony of the witness Sturgeon, and in giving, and refusing to give the instructions.

The testimony given before the court below is very conflicting, anti I ¡should feel unwilling to disturb the finding in all such cases, if the instructions given or refused to be given and the acts and rulings of the court in other matters be correct.

i am satisfied, that under the provisions of the new code of “Practice in Courts of Justice” the witness, Sturgeon, was competent, and his testimony ought to have been received. This too, without any other substitution in the forth-coming bond. Sturgeon was not a party; he was only liable upon a contingency; and this liability affected only his credibility; did not extend to incompetency. The 1st section of the 25th article new code of practice, is in those words: “No person offered as a witness shall be excluded by reason of his interest in the event of the suit.”

The defendants appeared to do away with'this interest, by substituting another name in the bond. This was objected to by plaintiff, and the witness was declared incompetent. The plaintiff now ©ontends, that as he at the same time admitted a statement of Mr. Sturgeon, to be read to the jury, that this takes away the error of the court below. That the defendant was not injured by such objection on the part of the plaintiff, and such ruling of the court.

We cannot say that ibis is so. The witness may have been important in other respects to the defendant. Why shall the plaintiff object to the Witness, and have him declared incompetent, and then admit a statement of the witness? I am unable to say, that the defendant was not prejudiced by this witness. It is in my opinion error.

The instructions given for the plaintiff will next demand my attention. The second instruction is totally outside of the controversy and should not have been given, although I might not be inclined to reverse alone from this instruction; as the case will have to be retried, I mention it in order that it may be avoided next trial.

The language of the first instruction is too broad, too general. Thomas Rawlings might have had said boat under his control; he might have been exercising acts of authority over the boat entirely against, the will, authority and command of the real owners, as a trespasser. The conclusion of the instruction, is such that it might easily have misled the jury.

From the evidence preserved in the bill of exceptions, the court should have given the fourth instruction asked as above by the defendant, which was, “if the jury believe from the evidence, that the owners or persons having charge of said flat boat, agreed, that the towing of the same, would be at their own risk, then the Madison is not liable, unless it is clearly proven, that the loss of the flat boat was occasioned by gross negligence or mismanagement of the persons navigating said Madison.”

The other instructions refused by the court, have nearly the same principles embraced in them as in those given by the court of its own motion, and find no fault in refusing them in such circumstances.

The court below erred in excluding Sturgeon as a witness. It should not have given the second instruction, and the first instruction was calculated to mislead the jury.

The judgment below must therefore be reversed, and cause remanded lor further proceedings, not inconsistent with this opinion.