State v. Baltimore & O.R. Co.

• Decision Date: 11 January 1912
• Citation: 83 A. 166,117 Md. 280
• Parties: STATE, to Use of WELCH, v. BALTIMORE & O. R. CO.
• Court: Maryland Court of Appeals

83 A. 166

117 Md. 280

STATE, to Use of WELCH, v. BALTIMORE & O. R. CO.

Court of Appeals of Maryland

January 11, 1912

Appeal from Superior Court of Baltimore City; Thos. Ireland Elliott Judge.

Action by the State of Maryland, for the Use of Emma A. Welch mother and next friend of James Henry Welch, deceased against the Baltimore & Ohio Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed, and new trial awarded.

Argued before BOYD, C.J., and PEARCE, BURKE, THOMAS, PATTISON URNER, and STOCKBRIDGE, JJ.

Linwood L. Clark, for appellant. Duncan K. Brent, for appellee.

BURKE J.

On Sunday, August 15, 1909, James H. Welch, a boy about 14 years of age, and the son of the equitable plaintiff, was run over and fatally injured by the tender of a locomotive of the defendant company which was backing along a switch on Wells street, at or near the foot of Byrd street, in the city of Baltimore.

The suit was brought in the name of the state, for the use of the mother, Emma A Welch, a widow, to recover damages for her son's death which was alleged to have been caused by the negligence of the defendant. At the conclusion of the plaintiff's evidence, the court granted a prayer by which the jury were instructed that by the undisputed evidence in the case the deceased by his own negligence had directly contributed to the happening of the accident, and that their verdict should be for the defendant. In obedience to this instruction the jury rendered a verdict for the defendant, and from the judgment entered thereon the plaintiff has appealed. This is the second appeal in this case, the first being reported in 114 Md. 536. ^[1] In the opinion of Judge Schmucker in that case, the locality where the accident happened and how it happened as described by the witnesses are fully considered, and the rule of law proper to be applied to the case is clearly stated. What was said in that opinion relieves us from a full discussion of many of the questions presented on this appeal. The record presents 12 exceptions taken to the rulings of the court on questions of evidence, and these will now be considered.

The first, second, third, and fourth exceptions present substantially the same question. They arose in this way. The plaintiff offered to impeach the credibility of the witness Zepp, whom he had placed upon the stand, and for this purpose read from the record in the former trial a number of questions and answers, and asked the witness if he had not so testified at that trial. He further offered to prove by John C. Davis, Jr., a stenographer who took the testimony at the first trial, that Zepp had testified to certain facts embraced in a question propounded to Davis.

There was no error in refusing to admit this character of evidence. In no case can a party calling a witness be permitted to impeach his general reputation for truth and veracity; but there are special circumstances under which he may be permitted to impeach or discredit him by showing that he had previously stated the facts in a different manner. The conditions under which this is allowable are thus stated in Smith v. Briscoe, 65 Md. 561, 5 A. 334: "If the witness has made to the party who calls him, or to the attorney of such party, a statement totally variant from his sworn testimony, and on the faith of such testimony he has been called, he may be asked if he made such a statement, and if he denies, we see no objection to the proof of such statement, not for the purpose of impeaching the general character of the witness, but for the protection of the party calling him. If a plaintiff calls a witness, relying upon statements made to him or his attorney, and when on the stand he proves the defendant's case, we think that the principles of justice require that the plaintiff should be able to show why he called him. There are objections to either course, but the more objectionable one would be to hold the party bound by the evidence of such treacherous witness. We restrict such declarations to those made to the party calling him or to his attorney, and made in reference to the case pending, and do not extend them to statements made to others. It is upon the statements so made to the party to the suit or his attorney that the witness is called. If the witness under such circumstances make a false statement, he cannot complain that his falsehood is exposed. But it is not every statement that may be made even to the party litigant or his attorney that should be allowed to be contradicted by the party calling the witness. It should be left to the discretion of the judge before whom the case is tried below to allow it to be done. The court should be satisfied that the party has been taken by surprise, and that the evidence is contrary to what he had just cause to expect from the witness based upon his statements, and that such statements were about material facts in the case. It is not every light or trivial circumstance that would justify it."

A comparison of the testimony of this witness with those portions of his evidence given at the former trial and embraced in the questions propounded to him shows that there was no such substantial variance as to bring the case within the exception stated in Smith v. Briscoe, supra.

The same is true of the eighth and ninth exceptions where a like attempt was made to discredit the witness Clark.

We find no error in the rulings embraced in the fifth and sixth exceptions. In the fifth exception it is stated that the plaintiff proposed to introduce a shoe which the boy wore at the time he was injured. The shoe had been given to the undertaker, Mr. Slowman, by the keeper of the dead house at the University of Maryland. Before this shoe could have been admitted it should have been shown that it was in the same condition as it was when the boy was taken to the hospital. The witness Ackerman testified that after the boy had been run over, he was crying, and said he knew he was dying. He was asked how often did he repeat that expression. The court, upon objection, refused to permit the question to be answered. Evidently, no injury resulted to the plaintiff from this ruling.

Nor do we find any error in the tenth, eleventh and twelfth exceptions. The plaintiff proposed to prove by Jefferson D Sweitzer and John T. A. Stroup, two experienced engineers, both of whom had been in the employ of the defendant company as engineers, and who were familiar with the tracks and cross-over switch where the accident occurred, that a person looking out the side window of a backing engine with a tender in front, could see the switch. If the questions asked these witnesses had embraced the conditions existing at the time of the accident, as described by the engineer, Zepp, the evidence would...