Baltimore Citt Pass. Ry. Co. v. Knee

• Decision Date: 26 March 1896
• Citation: 83 Md. 77,34 A. 252
• Parties: BALTIMORE CITT PASS. RY. CO. v. KNEE.
• Court: Maryland Court of Appeals

34 A. 252

83 Md. 77

BALTIMORE CITT PASS. RY. CO.

v. KNEE.

Court of Appeals of Maryland.

March 26, 1896.

Appeal from superior court of Baltimore city.

Action by John Knee against the Baltimore City Passenger Railway Company to recover for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before McSHERRY, C. J., and BRYAN, BRISCOE, RUSSUM, FOWLER, PAGE, and BOYD, JJ.

Arthur W. Machen, for appellant.

S. S. Field and B. Swinney, for appellee.

PAGE, J. The narr. alleges that John Knee was a passenger on one of the defendant's cars; that, near the intersection of Chase and Gay streets, the car was stopped on a signal from the conductor; and that Knee, intending to leave it, "arose from his seat, and moved towards the usual place of exit, * * * but, before he could reach the highway, * * * the car was suddenly started forward, whereby * * * he was thrown to the ground," and injured. At the trial, the plaintiff (having himself given an account of the accident), in support of these allegations, called as a witness, on his behalf, one Lewis Winters, who testified that he was about eight or ten feet from the cat when Knee was hurt; that he saw the car stop, and a couple of women get off, then a couple of gentlemen, and that one of these made a step, and, as he did so, the car "made a jolt," and he fell; that he was caught by the car, and was dragged; and that, when he came to the sidewalk, witness saw his hand was bleeding. The defendant, to rebut this statement, offered several witnesses, two of whom swore positively that Winters was not present at the scene of the accident To corroborate Winters, the plaintiff called Robert O'Kane, and offered to prove by him that Winters, two or three days after the accident, told witness "about having seen the accident. He (Winters) said he saw a man hurt at the corner of Broadway and Chase. He did not say who the man was. He did not mention any name. He just told me he had seen the man fall and get hurt. He didn't tell me any of the detail." The counsel for the defendant objected to the admission of this evidence, but the court permitted it to go to the jury. This constitutes the first exception.

Ever since the case of Rex v. Parker, 3 Doug. 242, it is well settled, according to the weight of authority, that "what a witness said not upon oath will not be admitted to confirm what he said upon oath." Robb v. Hackley, 23 Wend. 55; Conrad v. Griffey, 11 How. 490. But, though this is the general rule, the text writers agree that most courts have held that there "may be many cases where, under special circumstances, it possibly might be admissible; as, for instance, in contradiction of evidence tending to show that the account was a fabrication of a late date, and where consequently it becomes material to show that the same account had been given before its ultimate effect and operation, arising from a change of circumstances, could have been foreseen. 2 Starkie, Ev. marg. p. 187; 1 Whart. Ev. § 570; Tayl. Ev. 1330; Rap. Wit. § 224. This exception to the general rule seems to rest upon the theory that, the witness having been impeached by evidence showing that he has testified under corrupt motives, or has fabricated his testimony to meet the exigencies of the case, the fact, that he uttered the same statement shortly after the transaction, and before the motive to fabricate existed, tends to support not only his integrity, but also the accuracy of his recollection. To bring a case within this exception, it must appear that the conversation occurred soon after the transaction, is consistent with the statements made on oath, and contains such fact or facts, pertinent to the issues involved, as reasonably furnish to the jury some test of the witness' integrity, and accuracy of recollection. And this is the rule that obtains in Maryland. In the case of Maitland v. Bank, 40 Md. 540, the rule and its application are stated as follows: "The evidence admitted under it is not admitted to prove or disprove any fact involved in the issue on trial, but simply to corroborate or support the credibility of the witness; * * * to show that the witness has been consistent in giving the same narrative of fact; that his former statements, when without interest or motive to falsify the truth, consist with his sworn testimony given on trial; and thus, to some extent, remove suspicion that his testimony has been fabricated to meet the emergencies of the case, or that his recollection has varied, and is therefore not to be relied on. * * * The former unsworn statements, as compared with his testimony on trial, should furnish some test of the witness' recollection, as well as of his integrity." This is the extent of the rule here, whatever it may be elsewhere. It is an exception to the general rule, and must "not be extended, but applied strictly." Id. 559; Insurance Co. v. Davison, 30 Md. 104; McAleer v. Horsey, 35 Md. 464.

Now, what is this case? The witness Winters had sworn that he was present at the happening of the accident, and gave a narrative of all the facts as he saw them. The defendants produced witnesses who swore he was not present This went to a substantial impeachment of Winters. 30 Md. 104. To sustain him, the plaintiff offered to prove that, two days after the accident, Winters told...