Cottom v. Klein
| Decision Date | 01 April 1931 |
| Docket Number | 22291 |
| Citation | 123 Ohio St. 440,175 N.E. 689 |
| Parties | Cottom, A Minor, v. Klein. |
| Court | Ohio Supreme Court |
Evidence - Declaration of eyewitness, not party, that plaintiff caused accident - Expression of opinion upon ultimate issue for jury - Declaration incompetent as original or impeaching evidence - Cross-examination of witness, seeking opinion upon blame for accident - Relates to collateral matter, not subject to cross-examination.
1. In a suit against a defendant for personal injuries to the plaintiff arising out of an automobile collision the declaration of an eye witness, who was not a party to the suit, that the accident was caused, not by the defendant's fault but by the fault of the plaintiff, is but the expression of an opinion upon an ultimate issue to be determined by the jury.
2. Such declaration made by the eye witness is not competent, either as original or impeaching evidence; and, because of its prejudicial character, its admission for the purpose of impeaching the witness constitutes error.
3. The cross-examination of a witness, seeking his opinion as to the blame of the accident, relates to a collateral matter which is not subject to cross-examination. The witness's opinion, if obtained, could not be contradicted.
This action was brought in the court of common pleas of Summit county against Fred J. Klein by William J. Cottom, as the next friend of his child Eleanore, aged six, who suffered personal injuries by being struck by Klein's automobile while crossing Thornton street in the city of Akron. The defendant won a favorable verdict and judgment, which was affirmed by the Court of Appeals.
The petition averred that Klein was driving at an excessive and unlawful rate of speed, and that he otherwise failed to use ordinary care towards the child under the circumstances therein alleged. Negligence was denied by the defendant in the answer, and contributory negligence of the child was pleaded, the answer specifically alleging that the infant appearing without warning, ran into the path of defendant's automobile and was struck despite the use of ordinary care on his part to avoid the collision. About 10:30 a. m., on Sunday, October 2, 1927, Klein, driving a Franklin car easterly on Thornton street, was proceeding at a speed which he testified was about fifteen miles per hour. At the same time the father, Cottom, and three children, aged four six, and eight, respectively, were crossing Thornton, street from north to south, Cottom holding the hands of two of the children, one on each side, while the plaintiff Eleanore, aged six, clasped the hand of her little brother, aged four. Observing Klein's approaching automobile, Cottom and the three children stopped near the center of Thornton street to permit it to pass. The child Eleanore, leaving her small brother's side, pursued her way across Thornton street, first in a walk, then in a run after she saw the approaching vehicle. According to several eyewitnesses, Klein clamped on his brakes to avoid the collision, but was proceeding at such a rate of speed that it caused his car to skid thirty to fifty feet, striking the child as she reached the south curb of Thornton street, and dragging her several feet under the car, which continued its skidding over the south curb. Klein and the child's father then took the child in Klein's car to a children's hospital.
Cottom, the father of the plaintiff, was called as a witness in her behalf. In the course of his examination in chief, describing the manner in which he and his children were crossing Thornton street, he said: On cross examination he testified that he had hold of two of the babies, one on each side of him, and that Eleanore, the injured child, had hold of the hand of her four year old brother.
It appears that Mrs. Klein, the wife of the defend- ant, was not present at the time of the accident, but appeared later at the hospital. Some ten or fifteen minutes after her arrival at the hospital a conversation occurred between Cottom, Klein, and his wife, and the principal claims of error arise out Of the admission in evidence of the declaration made by Cottom to them in that conversation. On cross-examination he was asked whether he remembered saying to Klein and his wife that "there had been an accident, * * * it was not your husband's fault, it was the child's fault, she jerked away from me and ran in front of the car." Counsel for the plaintiff objected to the question, but the court permitted the question to be propounded for the purpose of impeaching the witness. The witness denied making such declaration. On the defense both Klein and his wife testified that Cottom had admitted that it was not Klein's fault, but was the fault of the child jerking away from her father and running in front of the car. This testimony was admitted over the objection and exception of plaintiff's counsel. The same character of testimony was also admitted as substantive testimony, and not by way of impeachment. Klein as a witness for the defense testified that the father shortly after the accident stated to him, "It was mostly his fault because the child slipped out of his hand, jumped right out of his hand."
Messrs. Roetzel, Hunsicker & Olds, for plaintiff in error.
Messrs. Musser, Kimber & Huffman, for defendant in error.
The trial court admitted the father's declarations solely upon the ground that they were competent for the purpose of impeaching the testimony of the father.
Cottom was not the real party in interest; he was acting in the capacity of next friend only. Had Cottom been the plaintiff in the suit, seeking recovery of damages, declarations made by him as such party that the cause of the collision was his own fault, might be admissible as a...
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