Johnson v. Chicago & N. W. R. Co.
| Decision Date | 18 March 1949 |
| Docket Number | 8918. |
| Citation | 38 N.W.2d 348,72 S.D. 580 |
| Parties | JOHNSON v. CHICAGO & N. W. R. CO. et al. |
| Court | South Dakota Supreme Court |
Louis H. Smith, Sioux Falls, for appellant.
Churchill & Churchill, Huron, for respondents.
This action was brought under the statute permitting the recovery of damages for wrongful death. On August 1st, 1941, Dean Johnson was traveling in an automobile alone, in a westerly direction, on a county highway in the vicinity of the village of Unityville in McCook county. There the defendants' railroad tracks crossed the highway at approximately right angles and the surrounding country is nearly level with no obstructions except a cornfield north of the road. As Johnson crossed the railroad tracks his car was struck by a train moving south, and his death resulted from the collision. The first trial resulted in a directed verdict for the defendants after which plaintiff appealed and the judgment was reversed. Johnson v. Chicago & Northwestern Ry. Co., S.D., 22 N.W.2d 725. Then the case was retried and the jury returned a verdict for the defendants. Plaintiff has again appealed.
The first question presented on the appeal relates to the admissibility of evidence. Plaintiff asked the witness Sandburg questions calling for a conversation had between the witness and decedent before the latter started for Unityville. Objections to decedent's part of the conversation were sustained by the court on the ground that the questions called for hearsay testimony. The plaintiff then offered to prove by the witness that decedent stated to the witness that he had never been to Unityville and requested instructions as to how to reach the place. Objection to the offer was made on the same ground, and was also sustained. Appellant contends that the evidence was material to show that decedent did not know the road to Unityville and by inference that he had no knowledge of the railway crossing.
'Evidence is called hearsay when its probative force depends, in whole or in part, on the competency and credibility of some person other than the witness by whom it is sought to produce it.' 31 C.J.S. Evidence, § 192; Wigmore Ev., 3d Ed., Vol. V, § 1361; Jones on Evidence, 4th Ed., § 297; Clendennen v. Bainbridge, 45 S.D. 410, 187 N.W. 727; Sachs v. Sachs, 66 S.D. 373, 283 N.W 173. Such evidence is incompetent and does not become admissible by the death of the person who made the assertion of fact to the witness. Colbert v. Miller, 149 Neb. 749, 32 N.W.2d 500. Here plaintiff offered to prove decedent's lack of knowledge by decedent's assertion of fact to the witness. The testimony offered was hearsay, and none of the exceptions to the hearsay rule are present. The objection was properly sustained.
The next two groups of assignments numbered 5 to 33, both inclusive according to appellant's brief, also relate to the admission of evidence. The transcript has been carefully examined as to each of these assignments for a complete understanding of the grounds upon which claims of error are based and to determine whether the alleged errors were prejudicial to the appellant. We have concluded that in each instance the ruling of the circuit court was either correct or that the error was harmless. The principles of law involved and their application are so well understood that a repetition of them in this opinion would serve no purpose.
Assignments numbered 34 and 35 relate to plaintiff's cross-examination of defendants' witness Watson, the engineer on the train involved in the collision. Appellant's counsel asked the witness: Objected to as calling for estimates as wholly immaterial and the objection was sustained. Appellant also offered to prove by the cross-examination of the witness the number of feet traveled by the train during each of four blasts of the whistle and the three intervals while passing from the whistling post to the highway, a distance of eighty rods. The purpose was to thereby establish that the last blast of the whistle ended four hundred ninety feet before reaching the highway crossing. To this offer respondents objected on the ground that no foundation had been laid; that the evidence of the witness at most could amount to only an estimate which would be inaccurate and undependable. The objection was sustained. Appellant contends that his cross-examination of the witness was unduly restricted.
The trial court is vested with discretion in determining the method and extent of cross-examination, especially where the object of counsel is to test the accuracy and credibility of the witness. 'If the cross examination is proceeding beyond that which is proper to test the accuracy and credibility of the witness, or is being needlessly protracted, or is being conducted in a manner which is unfair to the witness', the court may interfere. Jones on Evidence, 4th Ed., § 842.
The witness was subjected to an extensive cross-examination. He testified that the distance from the whistling post to the highway was eighty rods; that the speed of the train at the shistling post was about fifty miles per hour and at the highway crossing about forty miles per hour; that he gave four blasts of the whistle, two long, one short and one long, the first commencing at the whistling post and the last ending on the crossing. When asked how long the first blast took and how far he traveled during that blast he said, He was questioned about the distance traveled during the last blast of the whistle which he estimated at sixty-five to one hundred feet. Appellant proposed the line of cross-examination in question here for the purpose of obtaining further estimates from the witness and to use them as the basis of computation. Computations based on estimates of the time and distance of each blast of the whistle and each interval would still be estimates. '* * * The factors which enter into them are generally uncertain quantities,...
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