Louisville & N. R. Co. v. McClish

• Decision Date: 08 April 1902
• Docket Number: 975.
• Citation: 115 F. 268
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: LOUISVILLE & N.R. CO. v. McCLISH.

115 F. 268

LOUISVILLE & N.R. CO. v. McCLISH.

No. 975.

United States Court of Appeals, Sixth Circuit.

April 8, 1902

Charles N. Burch, for plaintiff in error.

Wm Kinney and H. J. Livingston, for defendant in error.

Before LURTON and DAY, Circuit Judges, and WANTY, District Judge.

DAY Circuit Judge.

This action was brought to recover damages sustained by the wrongful death of George McClish, it being alleged that he was negligently run over by one of the trains of the defendant company. The testimony tended to show that on the afternoon of February 4, 1899, the deceased left Brownsville in the direction of his home, and later in the afternoon his body was found about one mile north of Brownsville, at the foot of an embankment, near the railroad track. The injuries on his person were of such a character as to cause death. It is the claim of the plaintiff that he was knocked from the track and killed by one of the locomotives of a passing train, while the company contended that death ensued from the wrongful attempt of the deceased to board one of the trains of the company. It is strenuously argued that the case should not have been submitted to the jury, but should have been arrested by an instruction to find for the- company at the conclusion of the testimony. It would serve no useful purpose to summarize our views of the evidence, which we have carefully considered. It is only necessary to say that we have reached the conclusion that under the Tennessee statute a case was made upon the testimony sufficient to warrant its submission to the jury. We proceed to consider several of the assignments of error.

1. The witness Henry Wright, called by the plaintiff, gave testimony tending to show that he was at work on a telephone pole some distance south of the place of the injury; that he saw McClish, with whom he was well acquainted, pass up along the track northwardly shortly before the passenger train went in the same direction. Further, that shortly after the passenger train passed he saw parties bringing the body of McClish from the scene of the injury. The company offered the testimony of three witnesses, tending, with more or less certainty, to show that Wright was not at this pole that day, but was at a certain opera house until the' body was brought into town. Over the objection of the defendant company the plaintiff was permitted to introduce the testimony of witnesses to establish the general good character of the witness Wright for truth and veracity. The question of the admissibility of this kind of testimony has led to no little contrariety of decision in t.e courts of this country. The practice is not regulated by any statute of Tennessee, so far as we are advised, and is a question of general law, not controlled by state decisions. Garrett v. Railroad Co., 41 C.C.A. 237, 101 F. 102, 49 L.Ed. 645. The question was presented to this court under facts differing from those now before us in Spurr v. U.S., 31 C.C.A 202, 87 F. 713. In that case it was sought to sustain the admission of this class of testimony upon the ground that the cross-examination had impeached the defendant's character for truth and veracity. Of this claim the court, speaking by Judge Swan, said:

'A careful reading of defendant's cross-examination fails to disclose any ground for the admission of evidence of his general reputation for truth and veracity. The fact that contradictions exist between his testimony and that of other witnesses affords no ground for its admission. 1 Greenl.Ev. § 469. In his character as a witness defendant is not entitled to any privilege not extended to other witnesses. Reagan v. U.S. 157 U.S. 301-305, 15 Sup.Ct. 610, 39 L.Ed. 709; U.S. v. Hollis (D.C.) 43 F. 248. In general, where no attempt has been made to impeach him by evidence of bad character, or by contradictory statements, or by the cross-examination he cannot corroborate his testimony, or give it weight by evidence of his general reputation for truthfulness; nor will his own view of the effect of his cross-examination make such testimony competent. The rule as to the admissibility of testimony of character is thus broadly stated by Greenleaf (1 Greenl. Ev. Sec. 54): 'And in all cases where evidence is admitted touching the general character of the party, it ought manifestly to bear reference to the nature of the charge against him.' The evidence was obviously intended to give weight to the defendant's personal testimony; not for the purpose of establishing a general character inconsistent with the offense charged. The weight of reasoning and authority justified its exclusion. Stevenson v. Gunning's Estate, 64 Vt. 609, 25 A. 687; Fundorburg v. State, 100 Ala. 36, 37, 14 South, 877; Tedens v. Schumers, 112 Ill. 263, 267; People v. Cowgill, 93 Cal. 597, 29 P. 228.'

In the present case we perceive in the character of Wright's cross-examination nothing which tends to impeach his general character for truth. It is true it is searching and exhaustive, but it relates entirely to details of his alleged conduct and observation of McClish to which he had testified in chief, and we think the doctrine of the Spurr Case entirely applicable to the case in hand so far as that feature is concerned.

Did the contradiction of Wright by the witnesses who claim that he was not where he says he was, and consequently could not have seen what he attempted to describe, put in issue the general character of the witness for truth, and thereby justify the introduction of witnesses to sustain it? Greenleaf, who goes farther upon this subject than many of the authorities are willing to follow in admitting this class of testimony, supports the doctrine that the contradiction of a witness by other testimony does not lay the foundation for the introduction of other testimony supporting his general reputation for truth. Greenl. Ev. Sec. 469, and notes. What more is there in this case than the than the contradiction of Wright by other testimony? It is true that the contradiction is of that character that admits of no reconciliation of the testimony upon any theory of honest mistake or failure of memory. This is often true of witnesses whose general character for truth is unassailable. If, in every case where the witnesses are in direct and irreconcilable conflict, general character proof can be introduced, the disputed issues of fact will be lost sight of in a mass of testimony sustaining or impeaching the various witnesses in the case. The present case affords a striking illustration of the effect of the introduction of this class of testimony, for we find no less than six other witnesses at the trial whom it was deemed necessary to sustain by proof of general reputation. If this practice is to be followed, as is said in Russell v. Coffin, 8 Pick. 142, 'great delay and confusion would rise; and, as almost all cases are tried upon controverted testimony, each witness must bring his compurgators to support him when he is contradicted, and, indeed, it would be a trial of the witnesses, and not of the action. ' An attentive consideration of the cases and of the reasons upon which they are founded leads us to the conclusion that the introduction of this class of testimony should be confined to cases where an attack has been made upon the character of the witness by some method which tends to impeach his general character for truth. It is true that contradicting testimony may have an effect indirectly to impeach in the mind of the trior the character of the witness contradicted, but that is not the purpose of the testimony. It does not matter how much a witness may be contradicted, his general character is presumed good until it is assailed by some recognized method of impeachment. This may be undertaken by showing that the general reputation of the witness for truth is bad, by showing by direct proof or upon cross-examination that he has been convicted of an infamous crime. In these instances the attack is made upon his character, and is not so much upon his testimony in the particular case as upon his unreliability as a witness. When his character is thus assailed, the attack may be repelled by proof of general good reputation for truth. Until it is impeached it is not in issue, and we think the ends of justice will be subserved by confining the testimony to the issues of fact essential to the determination of the controversy before the court. While, as we have said, the cases are by no means uniform upon this subject, the conclusion reached is sustained by many well considered cases; among others; Wertz v. May, 21 Pa. 274; Brann v. Campbell, 86 Ind. 516; State v. Ward, 49 Conn. 429; Webb v. State, 29 Ohio St. 351; State v. Archer, 73 Iowa, 320, 35 N.W. 241; Russell v. Coffin, 8 Pick. 142; Brown v. Mooers, 6 Gray, 451; Gertz v. Railroad, 137 Mass. 77, 50 Am.Rep. 285; Stevenson v. Gunning's Estate, 64 Ct. 609, 25 A. 697; People v. Gay, 7 N.Y. 378; Tedens v. Schumers, 112 Ill. 263.

Whether the introduction of proof tending to show that the witness has made statements out of court inconsistent with his testimony is such an attack upon his character as justifies the introduction of sustaining testimony of general reputation is not a question involved in the record now before us. The cases are much in conflict upon the question, as a perusal of them will show. We cannot say that the admission of this sustaining testimony was harmless error. It tended to give undue weight and influence to the testimony of Wright over witnesses who rested upon the presumption of the law as to good character. Brann v. Campbell, 86 Ind. 516.

2. Under the decisions of the supreme court of Tennessee construing the statute under which this action was prosecuted, while the contributory negligence of the person killed...