Louisville & N.R. Co. v. Gregory

• Decision Date: 01 November 1940
• Citation: 284 Ky. 297
• Parties: Louisville & N.R. Co. v. Gregory.
• Court: United States State Supreme Court — District of Kentucky

284 Ky. 297

Louisville & N.R. Co. v. Gregory.

Court of Appeals of Kentucky.

November 1, 1940.

1. Witnesses. — After a witness has been examined in chief, he must be turned over to the opposing party for cross-examination.

2. Witnesses. — The right of cross-examination is even of greater importance when a witness is a party to the action, since the jury may well be calculated to give more careful consideration to a party's own testimony than to that of a mere witness.

3. Witnesses. — Where a party avails himself of the privilege of testifying as a witness in his own behalf, justice to the adverse party demands that the party testifying submit himself to cross-examination.

4. Witnesses. — The purpose of "cross-examination" is not limited to bringing out a falsehood, though it is the most efficient means devised by the law for the discovery of truth, but its purpose is to test the accuracy of the knowledge of the witness, his source of information, his motives, interest, and memory.

5. Appeal and Error; Witnesses. — In personal injury action, wherein plaintiff, who was brought into court on a cot, testified concerning his injuries, but wherein defendant was not permitted to cross-examine plaintiff on ground that plaintiff was not physically able to continue his testimony, trial court's failure to grant defendant's motion to set aside the swearing of the jury and to continue the case was prejudicial error, notwithstanding plaintiff's counsel offered to permit defendant to read cross-examination of plaintiff upon former trial of his entire testimony.

6. Witnesses. — On cross-examination of defendant's witness by plaintiff's counsel, trial court properly sustained defendant's objection to question if the witness knew his own reputation for truth from what people generally said in the community in which witness lived.

7. Appeal and Error. — Where trial court properly sustained defendant's objection to question of plaintiff's counsel on cross-examination of defendant's witness who had given damaging testimony against plaintiff, if witness knew his own reputation for truth from what people generally said in the community in which he lived, it was prejudicial error for plaintiff's counsel in arguing case to jury to state that plaintiff's counsel had asked defendant's witness if he knew his own reputation, that plaintiff's counsel could not say what the answer of defendant's witness would have been, but that defendant's counsel could have let the witness tell if defendant's counsel had been willing.

8. Trial. — Where counsel's objection is sustained by court to incompetent testimony, opposing counsel cannot argue the excluded testimony, nor by inference tell jury that it was unfair for the objection to have been made.

9. Appeal and Error. — Where counsel deliberately go outside the record in the jury argument and make statements, directly or inferentially, which are calculated to influence the jury improperly, the Court of Appeals will reverse the judgment.

Appeal from Laurel Circuit Court.

William Lewis, Ray C. Lewis, Blakey Helm and Trabue, Doolan, Helm & Stites for appellant.

John M. Robsion and Flem D. Sampson for appellee.

Before W.E. Begley, Judge.

OPINION OF THE COURT BY SIMS, COMMISSIONER.

Reversing.

The plaintiff, John Gregory, recovered a judgment against the Louisville & Nashville Railroad Company for $21,000 for personal injuries he is alleged to have sustained in a train wreck caused by defendant's negligence. The defendant assigns eight errors in seeking to reverse the judgment. As we have reached the conclusion it must be reversed because defendant was deprived of the right to cross-examine the plaintiff and because of improper argument of plaintiff's counsel, it will be unnecessary to consider the other six errors assigned. This is the second appeal and as the facts appear in the opinion on the first appeal reported in 279 Ky. 295, 130 S.W. (2d) 745, we will not reiterate them here.

The second trial started November 14, and was completed November 23, 1939. Some time was consumed in selecting the jury as extra veniremen had to be drawn from the wheel and the opening statement of the case to the jury was not made until in the second day of the trial, when plaintiff was brought into court on a cot, heard the opening statements, immediately after which his examination in chief was started. He testified he had been bedfast since August 6, 1939; gave the amount of his salary, and his earnings in addition thereto; gave the details of the wreck and his physical condition immediately following it; and then stated he was not physically able to continue his testimony and that something would have to be done for him. It appears from the bill of exceptions that at this point in the trial several physicians were summoned from the witness room to attend him there in the court room before the jury. Whereupon defendant objected and the court sent the jury from the room.

Plaintiff was then removed from the court room and his counsel proceeded with the case during his absence and completed the hearing of testimony in plaintiff's behalf in two or three days. Upon the completion of the testimony for the plaintiff, defendant's counsel moved the court to require plaintiff to be brought into court for cross-examination. When he was brought back into the court room his counsel announced they had not completed their examination of him. Plaintiff was then interrogated from his cot by his counsel concerning his injuries and resulting physical condition, which questions consumed four pages of the record, and he was turned over to defendant's counsel for cross-examination. After he had answered some preliminary questions, defendant's counsel asked him about the speed of the train at the time of the accident and if he had not testified on the former trial that it was traveling at a speed greatly less than he testified on this trial. Plaintiff then started answering questions with, "I can't remember," and several pages of his testimony shows this was the only answer he gave, and he interspersed his answers with "can't you get me somewhere where I can get some air". Defendant's counsel then asked him: "Do you think you could answer these questions if you were given a recess? A. I don't know, please get me where I can get some air."

Thereupon defendant's counsel moved the court to set aside the swearing of the jury and to continue the case because they were unable to cross-examine plaintiff. His counsel then suggested the defendant might read the cross-examination of plaintiff upon the former trial, or his entire testimony, or any part thereof, the same having been transcribed and was then in the court room. Counsel for defendant refused this offer, saying there was much they desired to ask plaintiff concerning his physical condition since the first trial. The court overruled defendant's motion to discharge the jury and continue the case and in doing so, remarked, "Unless he (plaintiff) improves and improves wonderfully, he has testified now just as much as he would ever testify on the trial of this case"; that he would "permit defendant to read either part, or the entire, testimony of the plaintiff had upon a former trial of this case, which has been transcribed, and which is now here in the court, if they so desire."

Plaintiff was unable to undergo cross-examination at this time and from the remarks of...