Fuchs v. Kansas City Southern Ry. Co.

On Rehearing. PROVOSTY, J. The testimony of a witness taken out of the state because of the fact of his residing out of the state is inadmissible if at the time of the trial the witness is present in court, and subject to be called as a witness. Hawkins v. Brown, 3 Rob. 310 ; 13 Cyc. 988; Wigmore on Ev. § 1415; Davison v. Sherburne, 57 Minn. 355 , 59 N. W. 316 , 47 Am. St. Rep. 618 ; 9 A. & E. E. of L. 352; Whitford v. County of Clark, 119 U. S. 522 , 7 Sup. Ct. 306, 30 L. Ed. 500 ; Texas & Pacific Ry. Co. v. Wilder, 92 Fed. 958 , 35 C. C. A. 105 ; U. S. v. Julian, 162 U. S. 325 , 16 Sup. Ct. 801, 40 L. Ed. 985 . The testimony of the witness Peyton should therefore have been excluded. But the exclusion of the evidence in chief of this witness carries with it the statement made out of court by the same witness which was admissible only in impeachment; and after a careful re-examination of the case we have reached the same conclusion that, eliminating this witness altogether, the facts of the case show that Fuchs was not given the proper warning as to the danger of explosions from gas before being sent to do upon this tank work which necessarily required him to go into it with the open light that was then provided by the defendant company for that purpose. The foreman himself, Fowler, although a witness evidently well disposed to the defendant, will not say that he gave him this instruction; and it was necessary instruction, since the danger which he was sent to encounter was that particular one, and since it was one of which the employer should have,had knowledge. On the question of the quantum of the damages we have found no reason for changing our opinion. The judgment heretofore handed down is therefore reinstated, and made the final judgment of this court.