Wise Terminal Co v. Mccormick

• Decision Date: 12 September 1907
• Citation: 107 Va. 376,58 S.E. 584
• Court: Virginia Supreme Court
• Parties: WISE TERMINAL CO. v. McCORMICK.

58 S.E. 584

(107 Va. 376)

WISE TERMINAL CO.

v.McCORMICK.

Supreme Court of Appeals of Virginia.

Sept. 12, 1907.

1. Limitation of Actions — Commencement of Action—Amendment of Pleading.

Where the cause and form of action are the same in both the original and amended declarations in an action by a brakeman for injuries sustained in attempting to board the tender of an engine, the amended declaration will not be regarded as stating a new cause of action, so as to bar the right of recovery, the amendment being made after the statute of limitations has run. merely because it charges the negligence complained of in varying form to meet different phases of the evidence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, §§ 543-547.]

2. Evidence — Opinion Evidence — Subject of Expert Testimony.

In an action by a brakeman for injuries sustained in attempting to board the tender of an engine, witnesses shown to be competent may give their opinions with respect to the distance within which the engine could have been stopped.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, § 2323.]

3. Evidence—Testimony on Former Trial.

Evidence held insufficient to excuse the failure to produce a witness or take his deposition, so as to warrant the introduction of his testimony on a former trial.

Error to Circuit Court, Wise County.

Action by W. B. McCormick, a brakeman, against the Wise Terminal Company, for personal injuries sustained in attempting to board the tender of an engine. Judgment for plaintiff, and defendant brings error. Reversed, and remanded for a new trial.

Ayers & Fulton and Bullitt & Kelly, for plaintiff in error.

Wm. H. Werth, for defendant in error.

WHITTLE, J. The evidence in this case, which is before us the second time, was ex-haustively reviewed on the former hearing and held not to establish actionable negligence on the part of the plaintiff in error, the Wise Terminal Company. Wise Terminal Co. v. McCormick, 104 Va. 400, 51 S. E. 731. It is now alleged that the second recovery is founded on substantially the same evidence, and must therefore be controlled by the former decision. On the other hand, the defendant in error contends that the evidence at the second trial, set out in the stenographic report, is not sufficiently identified to constitute part of the record, and the original record was brought up on a subpoena duces tecum to substantiate that assertion.

As a new trial must be granted on another ground, it is unnecessary to pass upon that question; but, before dismissing the subject, the objections to inadequate certification of evidence with which we are repeatedly confronted justify our again calling the attention of the profession to the importance of paying more regard to this essential feature in making up a record. Jeremy Improvement Co. v. Commonwealth, 106 Va. 482, 56 S. E. 224.

The first assignment of error which claims our attention is to the action of the trial court in rejecting the plea of the act of limitations. The assignment proceeds upon the theory that the amended declaration makes a new case.

In this the plaintiff in error is mistaken, as an inspection of the pleading plainly shows. The cause and form of action are the same in both declarations, and the amended declaration merely charges the negligence complained of in varying form to meet different phases of the evidence.

The principle is clearly stated in New River Min. Co. v, Painter, 100 Va. 507, 42 S. E. 300, as follows: "If an amended declaration assert rights or claims arising out of the same transaction, act, agreement, or obligation as that upon which the original declaration is founded, it will not be regarded as a new cause of action, however great may be the difference in the form of liability asserted in the two declarations."

That the case falls within the rule thus laid down will be seen from the statement, in the petition for a writ of error, that "the evidence on the last trial was confined mainly to the issue presented by the amended declaration; but the same issue was raised by the former declaration, and substantially the same evidence was introduced and * * * held insufficient to support a verdict."

Several assignments involve objections to the admission of opinions of witnesses with respect to the distance within which the engine could have been stopped. Subject to proper restrictions, based on the knowledge and experience of the witnesses, such evidence is admissible, and is usually relied on to prove that fact.

The next assignment is founded on the al leged effort of the plaintiff to discredit one of his own witnesses; but the record does not sustain the objection. The purpose of the examination, which is made the ground of exception, was to refresh the memory of the witness by reference to his testimony at the former trial, and not to impeach him.

Another error assigned is to the action of the court in allowing the testimony of the witness Campbell on the former trial to be read to the jury. The rule of practice, which, in civil actions at least, under certain circumstances, permits proof of what a witness stated at a previous trial between the same parties and upon the same issues, is conceded.

In 16 Cyc. 1088, the rule is stated thus: "The court must be satisfied (1) that the party against whom the evidence is offered, or his privy, was a party on the former trial; (2) that the issue is substantially the same in the two cases; (3) that the witness who proposes to testify to the former evidence is able to state it with satisfactory correctness; and (4) that a sufficient reason is shown why the original witness is not produced. The first three of these conditions render the reported evidence relevant. The fourth is necessary to justify the court in receiving it."

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