Cole v. Lake Shore & M.S. Ry. Co.

• Citation: 81 Mich. 156,45 N.W. 983
• Parties: COLE v. LAKE SHORE & M. S. RY. CO.
• Decision Date: 06 June 1890
• Court: Supreme Court of Michigan

45 N.W. 983

81 Mich. 156

COLE v. LAKE SHORE & M. S. RY. CO.

Supreme Court of Michigan

June 6, 1890

Error to circuit court, Washtenaw county; EDWARD D. KINNE, Judge.

Action by Sarah A. Cole against the Lake Shore & Michigan Southern Railway Company. The sixteenth and twentieth requests referred to in the opinion, are as follows: "(16) The absence of Mrs. Cole at the time of this trial is a circumstance that may be considered by the jury, and, if not explained to the satisfaction of the jury, should be taken as a circumstance against her, and as indicating that if she had been present, and testified as a witness in her own behalf her evidence, in whole or in part, would have tended to weaken her case." "(20) Under the circumstances as shown by the proofs in this case, the failure to call said plaintiff as a witness, and to have her give her testimony as to the alleged accident and her injuries therefrom, or to have taken her deposition in relation thereto, and to have read the same to the jury in this cause, is a suspicious circumstance against her." There was a judgment for plaintiff, and defendant appeals.

Weaver & Bean (Geo. C. Greene and O. G. Getzendanner, of counsel,) for appellant.

Sawyer & Knowlton, for appellee.

CHAMPLIN, J.

The plaintiff recovered a judgment in the court below, and the defendant brings the case here by writ of error. I quote from the opening sentence of the brief of defendant's counsel "This case is the companion piece of the case of George A. Cross against the same defendant, brought to this court by the defendant, the judgment of which was affirmed at the April term, 1888, and reported in 69 Mich 363, " Counsel has presented an elaborate brief, and in his argument urges us to review the law as laid down in that case, and adopt the principles of a line of authorities holding railroad companies to a less degree of care in providing suitable and safe ways to and from their station grounds. But, while yielding due respect to the authorities cited, and to the able argument of the learned counsel, we adhere to our former ruling, convinced, as we are, that it is both reasonable and right. The law of that case must govern its "companion piece," and calls for an affirmance of the judgment unless error has been committed in the reception or exclusion of testimony; and we will address ourselves to the assignments of error relating to that subject.

In the case of Cross v. Railway Co., a point was made that Mrs. Cole was not produced as a witness, and the failure to do so was the ground of a request to charge. In this case, in which she is plaintiff, she did not appear in court upon the trial; and the defendant again complains that she did not appear and testify in her own behalf, so that the defendant's counsel could have the benefit of a cross-examination. We do not think a party is obliged to tender himself as a witness in his own behalf. There are cases, however, when the circumstances may be such that if he does not do so the jury may be at liberty to draw unfavorable inferences from such fact. It has been held frequently that where the witness' testimony would be of vital importance in the case,-as, for example, if he were the only eye-witness of the facts,-an unfavorable inference by the jury is warranted, especially if the adverse party has no legal right to call the witness. State v. Rodman, 62 Iowa, 456, 17 N.W. 663; Rice v. Com., 102 Pa. St. 408; The Fred M. Laurence, 15 F. 635. The last case was a libel against the vessel in the court of admiralty, and was where either party could have called the witness; but the libelant neglected to call him, nor was any excuse for his non-production given; and as he was an eye-witness, and could have made certain what appeared uncertain, the presumption was allowed weight that his testimony would have been unfavorable to the libelant, and his libel was dismissed. Bleecker v. Johnston, 69 N.Y. 309, was a civil case. An action was brought for an alleged breach of a contract of employment against two defendants who were copartners. The plaintiff was the only witness to support his claim. Only one of the defendants was called as a witness, and his testimony directly conflicted with that of the plaintiff. It appeared that the other defendant was present at the time of the hiring, but was not called as a witness. The trial court instructed the jury as follows: "It is the duty of every party, in presenting their case before the jury, to produce every witness who can convey any light to the jury which will aid them in considering the evidence; and when a witness is within reach, and whose evidence could be produced, they have a right to infer that the non-production of the witness is caused by the fact that his evidence would not be beneficial to the party who was bound to produce him." This ruling was affirmed at the general term. In the court of appeals, ALLEN, J., said: "The non-attendance of the absent defendant at the trial may have been a proper subject of remark and for consideration by the jury; and if they, under all the circumstances, thought his absence suspicious, they might take a less favorable view of the testimony on the part of the defense. But this was the extent to which the plaintiff was entitled to any benefit from the circumstance." He also said: "The mere omission of a party to a civil action to call a witness who, at the most, has no other or better knowledge of the matter in dispute than those who are produced and give evidence, is not necessarily suspicious, entitling the adverse party to every presumption to his prejudice." I fully agree with this statement of the principle which should govern the production of evidence. In that case the absent witness had no more or better knowledge of the fact in issue than the witness who was sworn. There was no fact sought to be established by inference from other facts proved of which the absent witness had knowledge, and the witnesses sworn had not. The plaintiff in a civil case may establish his cause of action by proof of facts, and by inferences from facts proved; but, if he omits to call witnesses, whom he can procure, who have positive knowledge of the facts which he seeks to establish by inferences, he does so at his peril. I think the correct and reasonable rule is this: Where a party not called as a witness in his own behalf possesses knowledge of the facts in controversy unknown to others who have been called as witnesses, and such facts would supply positive evidence of what would otherwise be established by inference from other facts proven, then there is a presumption that the facts in the knowledge of the party not produced would be, if produced, harmful to the party relying upon such inference. Such presumption may be rebutted by any satisfactory explanation why such party is not produced, or his deposition taken. But the mere omission of a party to call a witness, other than the party himself, who might with equal propriety have been called by the other party, is no ground for a presumption that the testimony of the witness would have been unfavorable. Scovill v. Baldwin, 27 Conn. 316; Cross v. Railway Co., 69 Mich. 369, 37 N.W. 361.

Counsel for defendant claim that they had a right to suppose that Mrs. Cole would be produced at the trial in her own behalf that all the facts entitling her to recover were within her own knowledge, and in not appearing and giving her testimony she was guilty of suppressing testimony; and he framed certain requests, which the court refused to charge, based upon that theory. Counsel for plaintiff, in opening the case to the jury, announced that the plaintiff would not be present on account of...