Palmer v. Cedar Rapids & Marion Railway Co.
| Decision Date | 11 April 1901 |
| Parties | A. A. PALMER, Appellant, v. THE CEDAR RAPIDS & MARION RAILWAY COMPANY |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--HON. WILLIAM N. TREICHLER, Judge.
THIS action was brought to recover damages for personal injuries alleged to have been received by plaintiff by reason of a collision between the plaintiff while riding a bicycle on the streets of Cedar Rapids and a street car operated by the employes of the defendant, due to the negligence of defendant's employes, without fault on the part of plaintiff. The amount sued for was $ 15,000. Defendant denied the negligence and the injury, and alleged the contributory negligence of plaintiff. There was a verdict for plaintiff for $ 100, and from the judgment on this verdict plaintiff appeals.
Reversed.
Rickel & Crocker for appellant.
Chas A. Clark & Son and W. E. Steele for appellee.
Errors are assigned on the admission of testimony of witnesses for defendant as to how long it would take such witnesses to dismount from their bicycles on meeting an approaching team and this assignment seems to be well taken. Certainly the evidence ought to have been confined to what it would be reasonably practicable for an ordinary rider to do under such circumstances, and it was error to allow a witness to testify how long it would take him to get off his bicycle in case of danger.
Plaintiff was examined as a witness on his own behalf, and defendant offered in evidence the record of plaintiff's conviction in the United States district court for the Northern district of Iowa for the offense of carrying on the business of a liquor dealer without first having paid the special tax therefore required by the revenue laws of the United States. The evidence was objected to on the ground that it did not appear from the record offered that the offense charged is a felony, as defined by the laws of the state of Iowa nor that it is a felony under the laws of the United States, nor that it was punishable by imprisonment in the penitentiary, and also in general that it was incompetent, irrelevant, and immaterial. These objections were overruled, and the record was admitted, and, if in this ruling there was error, then unquestionably, prejudice is presumed to have resulted, and the judgment should be reversed. In arguing these assignments, appellant's counsel contend that the crime of which appellant was convicted in the federal court was not an infamous one, in such sense as to affect his credibility as a witness, and, further, that the conviction of a crime in another jurisdiction cannot be proven for the purpose of affecting the credibility of a witness in the courts of this state. The sections of our Code bearing upon the question thus presented are the following:
These sections, which appeared substantially in their present form in the Code of 1851, and have been retained ever since, have not been interpreted by this court with reference to the questions here presented, and require some consideration. The first of these follows the general section introduced into the Code of 1851, and ever since in force, declaring that every human being of sufficient capacity to understand the obligations of an oath is a competent witness. That provision removed the common-law disability of a witness on account of infamy, and the object of the provision found in section 4602 was undoubtedly to make the evidence of such a conviction as would have rendered the witness incompetent at common law, admissible to affect the credibility of his testimony. Section 4613 was enacted for a somewhat different purpose, as will appear from the connection in which it has been found ever since it was first adopted. It follows provisions declaring that the witness is not to be excused from answering questions on the ground that he would thereby be subjected to a civil liability, but that when the matter sought to be elicited would tend to render him criminally liable, etc., he is not compelled to answer. Under the common law, without regard to statutory provision, it has generally been held that the credibility of a witness may be impeached by showing his bad moral character, and that he may be asked on cross-examination as to the facts tending to show his bad character, but that, so far as his answers relate to matters collateral to the issue, they cannot be contradicted by other evidence; and, further, that he cannot be cross-examined by asking about a previous conviction of a crime, because the record of his conviction would be the best evidence of that fact. 1 Greenleaf, Evidence, section 457; 3 Jones, Evidence, section 834. On the question as to how far the witness may be interrogated with regard to criminal conduct, the authorities have been by no means clear or uniform, and it was evidently the purpose in enacting the provision now found in Code, section 4613, that a witness may be interrogated as to a previous conviction of a felony, but that no other proof of such conviction is competent, except the record thereof, to put into definite form the law on this subject. In this case the witness (plaintiff) seems to have been interrogated on cross-examination as to proceedings against him in the federal court, but the conviction shown by the record which was introduced was not a conviction for an offense which would be a felony under the laws of Iowa nor under the laws of the United States, and therefore the record was not admissible, under Code, section 4613.
We have to inquire, therefore, whether under Code, section 4602, this record was admissible as affirmative evidence on the part of defendant for the purpose of impeaching the credibility of plaintiff as a witness, and the question at once arises whether at common law the record of such conviction could have been introduced to show him incompetent to testify; for that section authorizes proof of "facts which have heretofore caused the exclusion of testimony"--that is facts which under the common law, as it was in force in this state prior to the incorporation of this provision into the Code of 1851, would have rendered him incompetent. By the common law, a witness who has been convicted of an infamous crime is not allowed to testify; the reason assigned being that such a person is insensible to the obligations of an oath, "morally too corrupt to be trusted to testify, so reckless of the distinctions between truth and falsehood and insensible to the restraining force of an oath as to...
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