Herzig v. Sandberg
| Decision Date | 06 April 1918 |
| Docket Number | 3889. |
| Parties | HERZIG v. SANDBERG et ux. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Jno. B. McClernan Judge.
Action by A. J. Herzig against A. C. Sandberg and wife. From judgment for plaintiff and order denying new trial defendants appeal. Reversed and remanded.
James M. Brinson, of Butte, for appellants.
Jos. H Griffin, of Butte, for respondent.
Plaintiff was injured by being struck by an automobile. He charges the defendants with negligence in the following particulars: (A) Failing to keep a lookout; (B) running the car at unreasonable speed; (C) violating the law of the road; (D) failing to give warning of the approach of the car. Issues were joined, and the cause tried, resulting in a judgment for plaintiff. Defendants appealed from the judgment and from an order denying them a new trial.
The charges of negligence A and D should have been withdrawn from the jury's consideration, as there was not any evidence to support either; that is to say, the evidence is uncontradicted that defendants, their driver and two other occupants of the car, all saw plaintiff when the car was 100 feet or more from him, while the testimony of the plaintiff himself is that he saw the car approaching 10 or 15 minutes before he was struck, and during that time appreciated the fact that it was drawing nearer and nearer. He had all the notice that any warning could give, and if there was a failure to give warning, it could not have been a proximate cause of his injury.
In support of the other charges plaintiff testified that in his opinion the car was driven at the rate of 40 miles per hour at the time of the accident; that he was walking near the right-hand side of the road, going north; that the driver of the car undertook to pass to his right instead of to his left; that the intervening space was not sufficiently wide for the purpose; and that by reason of this violation of the law of the road the collision occurred. On cross-examination counsel for defendants sought to show that at the time of the accident plaintiff was intoxicated. Upon objection the court refused to permit the investigation, and when defendants attempted to prove the same fact in their case in chief, they were met by the same ruling. In each instance the court erred.
1. The evidence was proper as a part of plaintiff's cross-examination. It is always permissible on cross-examination of a witness to test the accuracy of his knowledge or the completeness or distinctness of his recollection; to ascertain the source of his information, his opportunity for accurate observation, and his general acquaintanceship with the subject to which his direct examination relates. If he has made an estimate or given an opinion, he may be cross-examined for the purpose of shedding light upon the reasonableness of his estimate or the basis of his opinion. 1 Greenleaf on Evidence, § 446. These rules are elementary (40 Cyc. 2675) are fully comprehended within the terms of section 8021, Revised Codes, and should be invoked liberally, rather than restricted. Kipp v. Silverman, 25 Mont. 296, 64 P. 884; State v. Biggs, 45 Mont. 400, 123 P. 410; Cuerth v. Arbogast, 48 Mont. 209, 136 P. 383.
It is too well settled to be open to controversy that intoxication deadens the sensibilities, and therefore evidence that a witness was intoxicated at the time to which his testimony relates reflects upon his capacity for accurate observation, correct memory, and unbiased judgment. 17 Cyc. 787; 40 Cyc. 2574. It is no objection to say that the evidence, if produced, would have tended to make out defendants' special defense. If the question was within the legitimate range of cross-examination, it was none the less so that it was also proper in support of defendants' case.
2. The evidence was admissible under the general denials of the answer. If it could have been shown that at the time of the accident plaintiff was intoxicated to such a degree that his opinion as to the rate the car was running was worthless,...
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