Welsh v. Metropolitan Street Railway Co.

Ellison, J. Plaintiff instituted this action to recover damages of defendant for personal injuries received in attempting to get on one of its cable street cars in Kansas City. The negligence charged was the act of the gripman in starting the car suddenly before plaintiff had gotten fully aboard the car, whereby she was thrown down upon the street and injured. The verdict and judgment were for plaintiff. The chief complaint made is against the action of the court in a communication had with the jury in response to the request of the jury on their return into open court while considering their verdict. It appears that plaintiff’s deposition had been taken before a trial was had; that afterwards atrial [531] took place, at which, plaintiff was present and testified orally, and which resulted in a verdict for her, which was afterwards set aside by the trial court. Then followed the trial of which the present judgment was the result, at which plaintiff also testified orally. At,the last trial her testimony was substantially consistent with that at the first, but she was examined by defendant as to her testimony given at the first trial, and in the deposition, the latter, in our opinion, materially •differing from that given at the trials. After the jury had retired they returned into court, counsel for neither party being present, when the following transpired between the court and jury: “By one of the jurors: ‘If the court please, the jury desire to have re-read the former testimony of plaintiff.’ ” “By the court: ‘The stenographer will now read to the jury the portion of the testimony of plaintiff on the former trial, which was offered in evidence.’ ” This the stenographer did. Thereupon another of the jurors said to the court: •“I want the portions of plaintiff’s deposition which were offered in evidence re-read, and not her testimony on the former trial.” To which the court answered: “The jury will retire to their room, and if there is anything more they want, they can send a communication to the court and it will be answered.” Thereupon the jury again retired. In this we think error was committed, for which -the judgment must be reversed. Since the court responded to what it considered to be the request of the .jury, and directed the reading of plaintiff’s testimony taken at the first trial, it should have also, upon learning of the further wish of the jury for the reading of the deposition, have had it read. Indeed, it was the deposition which the jury, presumably, wished to hear, since therein lay the conflict in testimony. Consider [532] ing the request for the reading of the deposition and the response of the court, it is reasonably certain that the jury interpreted the court as refusing to have it read, and thereby the inference could be drawn that the court deemed it of no importance. But, in addition to this, the record does not show that any effort was made to secure the presence of counsel; nor does it show that such presence of counsel could not have been secured without serious inconvenience. Under such circumstances what occurred between court and jury was error of which the losing party may complain. Nortin v. Doesey, 65 Mo. 376; Chinn v. Davis, 21 Mo. App. 363; Sargent v. Roberts, 1 Pick. 377; Read v. Cambridge, 124 Mass. 567. The judgment will be reversed, and the cause remanded. All concur.