Central of Georgia Ry. Co. v. Holmes

• Citation: 134 So. 875,223 Ala. 188
• Decision Date: 21 May 1931
• Docket Number: 6 Div. 564.
• Parties: CENTRAL OF GEORGIA RY. CO. ET AL. v. HOLMES.
• Court: Alabama Supreme Court

134 So. 875

223 Ala. 188

CENTRAL OF GEORGIA RY. CO. ET AL. v. HOLMES.

6 Div. 564.

Supreme Court of Alabama

May 21, 1931

Rehearing Denied June 11, 1931.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action for damages for personal injuries by Elizabeth J. Holmes against the Central of Georgia Railway Company, the Ocean Steamship Company of Savannah, and the Illinois Central Railroad Company. From a judgment granting plaintiff's motion for a new trial, defendants appeal.

Reversed and rendered.

Nesbit & Sadler, of Birmingham, for appellants.

W. A Denson, of Birmingham, for appellee.

GARDNER J.

No question presented on the former appeal in this cause is here involved, but is cited as containing a general outline of the case. Holmes v. Central of Georgia Ry. Co., 217 Ala 333, 116 So. 323.

Upon the second trial, the judgment in defendants' favor was set aside on plaintiff's motion and a new trial granted from which judgment defendants prosecute this appeal.

A careful study of the record is persuasive to our minds that the trial court's ruling in awarding a new trial was rested upon his action in giving for defendants the two charges which constitute grounds 16 and 20 of the motion. These charges appear in the report of the case.

On the first trial there were present testifying as witnesses for defendants two employees of the Ocean Steamship Company (Hanson and Burns) who were fully cross-examined. Their testimony was taken down and transcribed, and, these witnesses being out of the state on the second trial, their testimony on former trial was offered in evidence without objection. As to the merits of the cause, the case went to the jury on the oral testimony of plaintiff and the record of the testimony of these two absent witnesses on former trial. In the court's oral charge were the following expressions:

"In determining the rights of the parties here, you take the evidence as given you from the witness stand and apply to these issues, in determining the rights of these parties.

"If you can not reconcile the testimony of the witnesses so as to make all of them speak the truth, then it is for you to say whom you are going to believe and whom you won't believe in a law suit, and in determining the weight you will give any witness' testimony you may take into consideration any interest a witness may have in the result of the law suit, the demeanor of a witness on the witness stand, or any interest or bias the witness may show by his or her own testimony."

In view of the situation above outlined, and these expressions usually and properly found in oral instructions to the jury, it is quite apparent that the two charges here considered were both proper and appropriate, for the two witnesses for defendants had not been upon the stand on this trial, but were absent, and could speak only from the record of their former testimony, without these explanatory charges, the language of the oral charge had some tendency at least to lead the jury away from a due consideration of the record evidence of these witnesses, because not given from the witness stand, and impress upon their minds its inferiority as compared to that of the plaintiff. We may know as a matter of common observation that such form of evidence does not generally make so decided an impression on the jury as that given orally in open court, but, so far as the question of due consideration of the evidence is concerned, the law makes no distinction. 10 R. C. L. pp. 100-103, 104; 22 C.J. 443. But, as pointed out in 10 R. C. L., supra, a witness may make a less favorable impression by deposition than by examination in open court, a matter dependent upon the intelligence, the peculiarities, the general appearance, and all other circumstances attending each particular witness. "These are matters about which the law lays down no general or inexorable rule. They constitute facts for the consideration of the jury in every case in which such questions may arise." 10 R. C. L. p. 1004.

Charges of like import to those here discussed have been generally approved. Hillis v. Kessinger, 88 Wash. 15, 152 P. 687, Ann. Cas. 1917D, 757; Garvik v. Burlington, etc., Ry. Co., 131 Iowa, 415, 108 N.W. 327, 117 Am. St. Rep. 432; Hershiser v. Chicago, B. & Q. R. R. Co., 102 Neb. 820, 170 N.W. 177.

These charges contain no intimation to the jury as to the weight to be given such evidence, but merely that the same should be duly considered. The word "consider" in this connection means "to think about; reflect upon; give close attention to; ponder." Funk & Wagnalls New Standard Dictionary, p. 562; Massachusetts Mut. Life Ins. Co. v. Colorado Loan & Trust Co., 20 Colo. 1, 36 P. 793; Hallock v. City of Lebanon, 215 Pa. 1, 64 A. 362; Ingard v. Barker, 27 Idaho, 124, 147 P. 293.

There is quite a distinction between an instruction to the jury that they give due consideration to the evidence and that such evidence is entitled to certain weight. This distinction was recognized in and commented upon in St. Louis & O'Fallon R. Co. v. U. S., 279 U.S. 461, on page 487, 49 S.Ct. 384, 388, 73 L.Ed. 798, and more elaborately treated in Hershiser v. Chicago, B. & Q. R. Co., supra, where the court points out that an instruction that testimony given in the form of depositions should receive the same fair and impartial consideration as if it had been given by witnesses in open court is entirely proper, but subject to criticism if it also instructs the jury that such evidence is to be given the same weight as that in open court, for the obvious reason that it would be a charge upon the effect of the evidence. Such an instruction was involved in Mann v. Darden, 6 Ala. App. 555, 60 So. 454, cited in Hershiser Case, and there condemned, and we think properly so.

Our court in Snodgrass v. Clark, 44 Ala. 198, recognized the fact that such character of proof should be given the same careful consideration as if deposed to in open court, which was cited approvingly in Childers v. Holmes, 207 Ala. 382, 92 So. 615. In the more recent case of Huckaby v. McConnon & Co., 213 Ala. 631, 105 So. 886, 889, the matter of the correctness and propriety of such an instruction as here considered was squarely presented and determined favorably thereto in the following language: "There was no error in instructing the jury that the testimony of a witness by deposition should be taken as if the witness testified from the stand, with explanation that it be taken with the same sanctity of an oath. This cannot be considered an instruction as to the effect of the evidence, but that it is legal evidence to be given the same consideration as other testimony. While the jury have not the benefit of the appearance, bearing, and manner of the witness, they should not be invited to indulge presumptions against such testimony because of this, nor because the witness is a nonresident and cannot be prosecuted in Alabama for perjury in another state."

The foregoing comments are applicable to the charges here considered, and fully sustain their correctness. They were not calculated to mislead the jury, and the ruling of the court cannot be rested upon the giving of these charges. We recognize that what was said by the court in Degg v State, 150 Ala. 3, 43 So. 484, and Fleming v. State, 150 Ala. 19, 43 So. 219, decided at the same term of court, justified the learned trial judge in reaching the conclusion that these charges were subject to criticism. But in neither case was the question necessary to the decision of the cause, and this particular matter was given no elaborate discussion. In justice to the trial court, counsel for appellant states that the court's attention on the hearing of the motion was not directed to the later case of Huckaby v. McConnon & Co., supra. The cases of...