Tacoma Ry. & Power Co. v. Hays

• Decision Date: 19 August 1901
• Docket Number: 656.
• Citation: 110 F. 496
• Parties: TACOMA RY. & POWER CO. v. HAYS.
• Court: U.S. Court of Appeals — Ninth Circuit

110 F. 496

TACOMA RY. & POWER CO. v. HAYS.

No. 656.

United States Court of Appeals, Ninth Circuit.

August 19, 1901

This cause is brought into this court on writ of error to reverse a judgment of the circuit court for the district of Washington, Western division, awarding the plaintiff (defendant in error) the sum of $2,500 as damages for injuries received from the negligent operation of a street car by the defendant. 106 F. 48. It appears from the evidence given at the trial of the case that the plaintiff was a farmer, living some distance from the city of Tacoma, in Washington, and was in the habit of driving to that city at least once a month for the purpose of trading; that on the afternoon of January 15, 1900, he drove up to Benlow's grocery store, at the corner of Thirteenth and C streets, in said city, with a double team attached to a farm wagon covered with canvas, closed behind. The electric cars of the defendant ran on C street generally in one direction, from north to south, there being but a single track on that street. The plaintiff's wagon stood on C street, about 20 feet south of the south line of Thirteenth street, facing south. After unloading his produce, the plaintiff looked around the side of his wagon up C street to the north, and saw no car on the street. He could see as far up as Ninth street, a distance of about a quarter of a mile. He then drove down C street in a southerly direction, between the curb and the track, the horses walking for a part of the distance, and trotting slowly the rest of the way, until they reached a point about 400 feet down the street, when the plaintiff, without again looking up the street, suddenly turned the horses directly across the track to go into a livery stable on the opposite side of the street. An electric car immediately struck his wagon throwing him out upon the pavement, and causing the injuries for which damages are sought to be recovered. It was contended for the plaintiff that when he looked up C street and saw no car within 1,400 feet of him, he could presume that a car would not overtake him before he could reach 400 feet distant, an ordinance of the city prohibiting the car from attaining a higher rate of speed than 12 miles an hour in that part of the city; that plaintiff was not compelled to anticipate violation of this requirement, or other negligence, on the part of the defendant, and was not guilty of negligence in not looking again for a car before driving across the track. The defendant, on the other hand, contended that the same rule of law applicable to railroad crossings should be applied to street-car tracks in the business portion of the city, and that plaintiff's negligence was, therefore, so great a factor in contributing to his injury as to defeat his action. The defendant moved for judgment in its favor, both at the close of plaintiff's case and at the close of the entire case, but these motions were denied, the court allowing the case to go to the jury.

Crowley & Grosscup (C. S. Fogg and A. G. Avery, of counsel), for plaintiff in error.

Governor Teats, for defendant in error.

Before ROSS and MORROW, Circuit Judges, and HAWLEY, District Judge.

MORROW Circuit Judge (after stating the facts as above).

The assignments of error present but two questions for determination: (1) Did the court err in allowing the introduction of certain impeaching evidence? (2) Did the court err in submitting the case to the jury upon the evidence?

1. The particular testimony sought to be impeached was given by one F. F. Gray, a witness called for the plaintiff, who testified that he saw the accident in question, and that the car was going at a speed of about 10 or 12 miles an hour. He was then questioned as follows by plaintiff's attorney:

'Q. Did you not tell me, at your house, the other night, that it was going twenty or twenty-five miles an hour? A. I do not think that I did. Q. Do you not know, as a matter of fact, that you told me-- Mr. Grosscup: I object to that. This is his own witness. The Court: If you are surprised by the statement of the witness-- Mr. Teats: I am. A. I do not remember saying that to you. * * * Q. Did you not state, also, that the car was running about twenty or twenty-five miles an hour? A. No, sir; I do not think I did. I have not any recollection of it.'

On rebuttal the plaintiff called a Mr. Lund, who had assisted plaintiff's attorney in procuring evidence in the case, and the following testimony was given with reference to the statement of the witness Gray:

'Q. by Mr. Teats: Did you call upon Mr. Gray some time this week or last week? A. Yes, I called on Mr. Gray last week. Q. Did you talk with Mr. Gray concerning this accident? A. Yes, sir. Q. What did he say, if anything, as to the speed of the car? Mr. Grosscup: I object to that. The Court: Do you claim the right to impeach your own witness? Mr. Teats: I think we ought to, under the circumstances. The Court: It is sometimes admissible to do that where you are taken by surprise. Mr. Teats: We are absolutely taken by surprise. * * * Mr. Teats: Our statement of the case is simply this-- The Court: You need not state it. You may ask the question. Mr. Grosscup: We wish to preserve our exception. (Question read to witness.) A. Have you reference to the car at the time this accident occurred? Q. Yes. A. He said that car was running not less than twenty miles an hour.'

The court admitted this evidence upon the statement by plaintiff's counsel that he was absolutely taken by surprise in the testimony of the witness Gray. A diversity of opinion exists upon the question of whether it is competent for a party to prove that a witness whom he has called had previously stated the facts in a different manner, but the trend of judicial expression appears to be in favor of the admission of such testimony, not for the purpose of impeaching the general character of the witness, but for the protection of the party calling him. Like justice to each of the contestants would seem to require that, where the testimony is undoubtedly a surprise, the party should have the privilege of showing why he called the witness; and the jury is quite as competent to judge of the credibility of the witnesses under such circumstances as in other contradictory statements. Exception to the general rule that a party cannot impeach his own witness has been made in many jurisdictions by allowing the introduction by him of other evidence showing that the witness has at other times made statements inconsistent with the testimony then given, and especially is this permitted when the testimony in question relates to a material fact in the case. Provision has been made for such procedure by statute in England and in many of the states, and the practice seems to be favorably regarded by the federal courts.

In the case of Swift v. Short, 34 C.C.A. 545, 92 F. 567, in discussing the privilege of a litigant to introduce contradicting testimony of other of his witnesses, the court says:

'A litigant may not introduce testimony for the purpose of showing that the general character for truth and veracity of one of his own witnesses is bad, but this rule does not go to the extent of preventing him from showing the verity of any particular fact or transaction which he wishes to establish. He may call witnesses to prove a particular fact, although their evidence with relation thereto contradicts the testimony of other witnesses who have previously testified in his favor with reference to the same transaction. Moreover, under some circumstances, where a party has been deceived by one of his witnesses, who has given testimony which was unexpected, the better view is that the party so deceived may impeach the witness to the extent of showing that the statements made by him on the witness stand are contrary to those made by him before the trial, or before he was sworn,'-- citing Phil. Ev. 905; Greenl. Ev. (15th Ed.) Secs. 443, 444; Melhuish v. Collier, 15 Q.B. 878; and Hemingway v. Garth, 51 Ala. 530.

In Hickory v. U.S., 151 U.S. 303, 309, 14 Sup.Ct. 334, 38 L.Ed. 170, error was assigned in that the court did not allow the defendants to show that they were surprised by the testimony of one of their witnesses. The supreme court stated the rule to be:

'When a party is taken by surprise by the evidence of his witness, the latter may be interrogated as to inconsistent statements previously made by him for the purpose of refreshing his recollection and inducing him to correct his testimony; and the party so surprised may also show the facts to be otherwise than as stated, although this incidentally tends to discredit the witness. * * * By statute in England and in many of the states it has been provided that a party may, in case the witness shall, in the opinion of the judge, prove adverse, by leave of the judge show that he has made at other times statements inconsistent with his present testimony; and this is allowed for the purpose of counteracting actually hostile testimony with which the party has been surprised,'-- citing cases.

It is here specifically left to the discretion of the trial judge to admit the counteracting testimony. The court then shows that in the case in controversy the witness was not a hostile witness; that the testimony denied admission was not in itself prejudicial, but merely contradictory of an immaterial fact; that the privilege desired had been practically granted to the defendants by the court's allowing them to cross-examine the witness if they chose, and to prove the fact to be otherwise than as stated by him. It was held not to be error, because the court, in the exercise of its discretion, declined to concede any further relaxation of the rule. The discretion of the trial judge...