Midland Valley Railroad Co. v. Ennis

Citation159 S.W. 214,109 Ark. 206
Decision Date14 July 1913
CourtArkansas Supreme Court

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; reversed.

Judgment reversed and cause remanded.

Edgar A. de Meules and Sol H. Kauffman, for appellant; J. W McLoud, of counsel.

1. A plaintiff can not impeach his own witness by proof of prior contradictory statements without first showing that he had been entrapped by the witness or that his testimony amounts to a surprise. 40 Cyc. 2559; 50 Cent. Dig., Witnesses, § 1214; 7 Enc. of Ev. 31; Greenleaf on Ev. (16 ed.), § 444; 154 U.S. 134, 38 L.Ed. 936; 99 Wis. 639, 75 N.W. 416; 2 Okla.Crim. 362, 102 P. 57; 93 P. 1049; 153 Cal. 652, 96 P 266; 34 Fla. 185; 15 So. 904; 20 Mont. 574, 52 P. 611; 110 S.W. 1013; 103 S.W. 911; 60 S.W. 881; 45 S.W. 808; 45 Fla. 8; 92 Ark. 237, 122 S.W. 506; 59 Miss. 243; 116 La. 36, 40 So 524; 111 P. 679, 140 A. St. Rep. 668, 31 L.R.A. (N.S.) 1166. There can be no claim of surprise where a party places a witness upon the stand with notice that the witness will testify adversely to him; and the practice of questioning one's own witness for the sole purpose of impeaching him is not permissible, supra; 115 Cal. 50, 46 P. 863; 89 P. 757; 9 Idaho 35, 71 P. 608.

The error of this method of procedure is so substantially prejudicial, that it is not cured by the giving of an instruction to the jury at defendant's request to the effect that proof of prior inconsistent and contradictory statements does not tend to establish the truth of the matter set forth in said statements. 70 Miss. 742, 12 So. 852; 100 S.W. 927; Id. 770; 92 S.W. 1093.

Admission of proof of prior contradictory statements was further erroneous for the reason that the witness had not testified prejudicially to the plaintiff at the time of his impeachment. 40 Cyc. 2696; 10 Enc. Pl. & Pr. 320; 7 Enc. of Ev. 31-35; 34 Fla. 185, 15 So. 904; 65 W.Va. 375, 64 S.E. 260; 18 Ore. 307, 22 P. 1064; 29 Ore. 85, 43 P. 947; 24 S.W. 904; 46 Fla. 166; 49 Cal. 384; 141 Cal. 529; 153 Cal. 652; 94 Cal. 550; 110 S.W. 1013.

2. The court erred in refusing a peremptory instruction in favor of the defendant.

The verdict of the jury is not supported by sufficient evidence. There is no evidence whatever that he was caught between the ties, or that he was caught in any manner and was unable to extricate himself. 115 S.W. 890; 76 Ark. 436; 181 F. 91; 98 Tex. 451; 126 P. 760; 139 N.C. 273; 56 Ill.App. 578; 89 S.W. 810; 103 Va. 64; 157 N.W. 244; 93 S.W. 868; 28 Ky. Law Rep. 989; 75 Md. 38; 75 Md. 38; 23 A. 65; 81 A. 267; 79 Ark. 437; 73 Tex. 304; 47 Minn. 384; 131 N.Y. 671; 97 Pa. 450; 159 Mass. 589; 150 S.W. 572; 179 U.S. 658; 222 Mo. 488; 72 S.C. 398; 140 S.W. 579.

It is apparent that appellee relied in the lower court upon the prior contradictory statements of the witness Young to make out his case. It is elementary law of evidence that proof of prior inconsistent statements of a witness can be introduced and considered only for the purpose of impeachment, and not as substantive evidence of the truth of the matter stated. 40 Cyc. 2764; 7 Enc. of Ev. 249; 50 Am. Dig., Cent. Ed., 1655; Wigmore on Ev. § 106; 132 Mo. 363; 80 Ky. 507; 34 Fla. 185; 123 Cal. 374; 100 S.W. 770; 111 P. 679; 75 N.H. 23; 67 Ark. 594; 18 S.W. 172; 72 Ark. 582; 73 Ark. 484.

The peremptory instruction should have been given for the further reason that the cause of action alleged was not proved. The allegations of the complaint bring this case within the operation of the Federal Employers' Liability Act, which is paramount and exclusive. Thornton, Fed. Employers' Liability Act, § 40, p. 223; Id. p. 424; Id. 444; 175 F. 506; 173 F. 527; 184 F. 828; 140 S.W. 579; 33 S. C. Rep. (U.S.) 135; Id. 192; 167 F. 660; 233 U.S. 1; 200 F. 44. The laws of the State of Oklahoma, therefore, in so far as they covered the same subject, were superseded by the Federal act, and the plaintiff must recover under that act or not at all. So long as the complaint shows that the Federal statute was applicable, it was the sole measure and source of the plaintiff's right of action. 167 F. 660; 158 U.S. 285, 29 L.Ed. 983; Thornton, Fed. Employers' Liability Act, § 19, p. 35; 197 F. 537; Id. 578; Id. 579; Id. 580; 153 S.W. 163; 148 S.W. 1011.

There was no attempt made nor any request to amend the complaint so as to base a right of action upon the laws of Oklahoma. Even if an amendment had been offered it would have been the duty of the court to refuse it, because a new cause of action can not be introduced by way of amendment. 70 Ark. 319; 75 Ark. 465; 83 Ga. 441; Id. 659; 113 Ga. 15; 78 A. 34; 158 U.S. 285, 39 L.Ed. 983.

Hill, Brizzolara & Fitzhugh, for appellant; Cunningham & Berry, of counsel.

1. The parties having elected to try upon one issue in the lower court, the defendant will not be permitted to try it upon a different issue on appeal. 64 Ark. 305.

On the point that there had been no amendment nor request to amend the complaint, it is enough to say that there could be no more effective way of amending the complaint than by requesting and having the trial court to give an instruction that a certain allegation was withdrawn. The court's discretion and authority in the matter is clear. Kirby's Dig., §§ 6140, 6141, 6142, 6145; 42 Ark. 57; 94 Ark. 365.

2. It was error to exclude the deposition of the witness Young at the time it was offered by plaintiff. Kirby's Dig., § 3157; 49 S.W. 791; 23 S.E. 207; 17 Ill. 406; Id. 571; 11 Humph. (Tenn.) 90. If it was error to exclude this deposition, it was induced by appellant, of which it can not complain; and it can not complain of the subsequent error, if it was error, in permitting it to be used to contradict the witnesses.

The statement given by Young to Mr. Green, the claim agent, on the next day after the accident, was identified by him as containing the absolute facts so far as he knew them. It is not mere contradiction of the witness, but is affirmative testimony of itself, tending to prove the facts therein stated. 1 Greenleaf on Ev. (16 ed.), §§ 436-439; 63 Ark. 187.

The rule formulated under section 3157, Kirby's Digest, is not limited to cases where the party seeking the contradiction of a witness must show that he was entrapped or his testimony amounts to a surprise. The statute is broad and was passed to destroy the rule of evidence appellant contends for. 2 Wigmore on Ev., § 896; Id. § 904; 1 Greenleaf on Ev. (2 ed.), § 444.

3. A peremptory instruction to find for the defendant was properly refused, because, leaving the testimony of Young entirely out of it, there is sufficient evidence in the record to go to the jury, and to sustain a finding that defendant came to his death from one of the causes alleged in the complaint. St. Louis, I. M. & S. Ry. Co. v. Hempfling, 107 Ark. 476.



Appellee 's intestate, H. J. Caver, was employed by appellant in the capacity of a brakeman, and while working as such was killed at Nelogany, Oklahoma, on October 16, 1911, being engaged at the time in switching freight cars from appellant's road to the tracks of a connecting carrier, the Missouri, Kansas & Texas Railroad Company.

This is an action by appellee as administrator of the estate to recover damages on account of the suffering alleged to have been endured by deceased as a result of the injury, and the loss of contributions to the widow as next of kin.

An appeal has been prosecuted from a judgment in appellee's favor.

There are numerous assignments of error, the most important of which is that the evidence is not sufficient to sustain the verdict.

We have reached the conclusion that the evidence is not sufficient, and the case will be reversed on that ground, so that it will not be necessary to discuss all of the assignments. Only those will be mentioned which will necessarily arise in further proceedings in the case when remanded to the circuit court for a new trial.

The freight train on which Caver was serving as brakeman reached the station of Nelagony at night, and contained several cars which were to be switched over to the tracks of the connecting carrier for delivery to the latter. Appellant's main track runs east and west, and there is a track south of the station called the delivery track connecting the two roads. Between the delivery track and the station house is a track called the house track, which runs parallel with the delivery track and is connected with it by a switch. It was at this switch that Caver was killed by the moving cars which were being switched over to the line of the connecting carrier. For a short space near the switch the ties were laid irregularly, in some instances wide apart at one end and close together at the other, thus forming angles, and the roadbed was very rough from the frog for a distance something over twelve feet, where there was a gully which ran across the roadbed. The gully was about fifteen inches deep from the top of the ties to the bottom of the gully. Grass and weeds were growing between the ties, which covered the surface of the ground so that the condition could not be easily discovered.

The injury occurred on a dark night, and the proof shows that Caver had previously made three trips on this run as brakeman.

It is also alleged that the frog of the switch was not properly blocked or that the block had been permitted to get out of repair. There is some testimony to the effect that the block in the frog had become worn to about half of the ordinary thickness.

After the train came into the station, Caver, in the discharge of his duties, cut the caboose off from the train and spotted it on the main line, and lined up the main track switch, which was east of the station house, the...

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