East Tennessee, V. & G. Ry. Co. v. Kane

• Decision Date: 26 June 1893
• Parties: EAST TENNESSEE, V. & G. RY. CO. v. KANE.
• Court: Georgia Supreme Court

18 S.E. 18

92 Ga. 187

EAST TENNESSEE, V. & G. RY. CO. v. KANE.

Supreme Court of Georgia

June 26, 1893

Syllabus by the Court.

1. Where a nonresident witness for whom interrogatories had been sued out was in court at the time of the trial, it was error to permit the answers to the interrogatories to be read to the jury over objection of the opposite party, although the witness was in attendance upon the court at the instance of the latter, the witness being actually present when the answers to the interrogatories of were offered in evidence.

2. It is not cause for a new trial that the court refused to allow certain questions propounded to witnesses by defendant's counsel to be answered, it not appearing what answers were expected, and in view of other evidence and of admissions is the declaration, no possible answers to these questions being a substantially material.

3. Upon the trial of an action against a railroad company for a homicide resulting in part from the misplacement of the switch, it was not error to refuse to allow the defendant to show "the common experience of railroads" in getting back switch keys from their employes, and that all railroads have great difficulty in keeping up with such keys and having them returned by discharged employes because of their real or alleged loss. Nor was there error in refusing to allow defendant to prove "the custom or usage of railroads in reference to providing a watchman for each of their switches," defendant expecting to prove "that the general custom was not to provide a watchman for such switches."

4. Though one of the main issues was whether or not the engineer for whose homicide the action was brought was guilty of negligence in bringing, about the collision which resulted in his death, there was no error in refusing to allow the defendant to prove that he "was habitually reckless in running freight trains at excessive speed, and running to fast over switches," the witness' knowledge not extending to more than two or three instances.

5. The defendant may invoke and use allegations beneficial to himself made in plaintiff's declaration without offering the declaration itself in evidence, or otherwise proving the admissions contained in such allegations, and no unfavorable inference can properly be drawn against a corporation because of a failure to call as witnesses its own employes to prove the existence of facts shown by such admissions.

6. The mere fact that a railroad company fails to recover from a discharged employe a key which controls the turning of a switch is not of itself sufficient to make the company liable for the criminal act of such employe in maliciously misplacing a switch for the purpose of wrecking a train. The company is not bound to anticipate that, purely out to revenge for his discharge, a former employe might secretly commit so heinous a crime against it and the public. Nor is the company bound to exercise constant vigilance to prevent all personal whatsoever not in its employ from having the means of opportunity of tampering with its switches or its tracks. Whether or not in any particular case the company exercised the proper degree of care in protecting its switches from interference is a question for the jury, in determining which they may look to the evidence to ascertain if there was any reason for the company to apprehend such interference, and, if so, whether, under all the circumstances, it used due diligence in endeavoring to prevent the same. In its charge to the jury, the court should not state or assume that a given state of facts would show negligence on the part of the company in the respect indicated.

7. A prima facie case of negligence on the part of the defendant which the plaintiff's declaration covers, cannot be effectually answered by a given state of facts, if those facts involve a breach of diligence by the defendant in a materials respect; and such breach of diligence, if shown may be urged by the plaintiff, not to recover upon, but to defeat the defendant's justification, although no reference to it is made in the plaintiff's pleadings.

8. According to the undisputed facts, the plaintiff's husband was guilty of negligence in running his train in violation of the rules of the company, of which he had knowledge, and which he had agreed, upon entering its employment, to obey. For this reason, and because of errors committed by the court, and there should be a new trial; and if, upon the next hearing, the evidence is substantially the same, there should be a verdict for the defendant.

Error from city court of Macon; J. P. Ross, Judge.

Action by Annie May Kane against the East Tennessee, Virginia & Georgia Railway Company for the deal of plaintiff's husband. Judgment for plaintiff. A new trial was denied, and defendant brings error. Reversed.

Hill, Harris & Birch, for plaintiff in error.

Lanier, Anderson & Anderson, for defendant in error.

LUMPKIN J.

1. Section 3878 of the Code declares that if the state of facts on which a commission to take the interrogatories issued ceases to exist before the trial of the cause, and the witness is men accessible by subpoena, the testimony taken on interrogatories cannot be used. It follows, necessarily, that if the witness is accessible by being actually present in court at the trial when his testimony by interrogatories is offered, his answers to the same cannot be admitted, but the witness should be examined in person. It does not make the slightest difference that his attendance upon the court was at the instance and request of the opposite party. If, because of this fact, the party who had caused the interrogatories to be sued out does not desire to introduce the witness, it is his right to decline to do so; but if he wishes the testimony of the witness on go before the jury, he must put the witness on the stand. Testimony taken by interrogatories is, at best, unsatisfactory and imperfect, and it is the policy of the law to dispense with this method of securing evidence whenever practicable. Of course, if answers to interrogatories have already have been read to the jury, and the witness afterwards comes into court, this would not requires that the answers be ruled out or withdrawn. Not must anything here said be construed to prevent the introduction of answers to interrogatories for the purpose of impeaching a witness when his testimony on the stand is in conflict with that which had been taken by commission. Nor is the rule announced applicable to female witness, for they enjoy at least a qualified privilege as to attending court.

2. The evidence showed that a violent collision had taken place between the engine which the plaintiff's husband was running as engineer, and certain box cars which were standing upon a side track. The wreck resulting from this collision was of such character that there could be no possible doubt the engine must have been running at the very rapid rate of speed. Counsel for the railway company elicited from certain witnesses a full description of the wreck and its consequences, and then asked of each "whether or not a collision of that violence could have taken place unless the engine had been running at a very high rate of speed." Upon objection by plaintiff's counsel, the court refused to allow these questions to be answered; and although it was not stated by counsel propounding the question what answers were expected, the court, perhaps, ought to have permitted the answers to go to the jury. It being a manifest, however, that the engine was running very rapidly, that the plaintiff's declaration admitting this fact, and the refusal of the court to allow the questions to be answered would certainly be no cause for a new trial.

3. The defendant desired to show "the common experience of railroads" in getting back switch keys from their employes, and, in this connection, to prove that all railroads have great difficulty in keeping up with such keys and recovering them from discharges employes. It also sought to prove "the custom or usage of railroads in reference to providing a watchman for each of their switches," and "that the general custom was not to provide a watchman for such switches." The court rejected all of this testimony, and, in our opinion, did so properly. Testimony as to the common experience,...