94 Tenn. 345 | Tenn. | 1895
These causes are suits for personal injuries resulting in the death of Wm. Aliston and his son, Charles Aliston. The causes are different, but arise out' of the same accident, and were heard upón substantially the same evidence in the Court below", and are heard together ' in this Court by agreement of counsel.
It is assigned as error that the Court should have held the so-called compromise conclusive, and a bar to any further recovery. Compromises made in good faith of doubtful claims, by parties dealing with each other on equal terms, and; with opportunities to know their rights, will be sustained by the Courts.
. Without entering into detail; we think the arrangement in this case did not rise to the dignity and importance of a compromise, and that the company did not so regard it, but looked upon- the amount paid more in the light of a contribution for' chari
It is said that error was committed in the cross-examination of the Avitness, Eravel, the defendant’s engineer. This witness testified not only as to the facts attending the killing, but also to some extent as an expert engineer. In conducting the cross-examination plaintiff’s attorney used a book published by the Westinghouse Air Brake Company, giving an account of the -brake manufactured by them. After several questions had been asked as to what the book was, and as to certain statements contained in it, defendant’s attorney objected on the ground that the eA'idence was incompetent, but made no further or more specific statement of his objection, and it was overruled. After proceeding further, counsel objected to the reading of the book, but made no specific statement of the objection, and it was overruled. The objection,, from its connection, does not appear to have been to the book as authority, but to the manner of using it; that is, the witness was
After the defendant had closed its evidence, the plaintiff offered evidence in rebuttal, and the plaintiff’s attorney then read to the jury portions of the book showing tests made at Cincinnati, in 1887, with the Westinghouse Air Brake. No exception was at this time made to this, and no request was made to exclude it. If the book when first offered had been improperly admitted, it was not necessary to keep up the same objection when it was after-wards offered in the same way, and for the. same purpose. But we are of opinion that' the objections to the use of the book, as first made, were not well taken. The admission of such evidence is a matter largely in the discretion of the Court, as well as the mode of conducting the examination.
The witness, Fravel, was testifying not only as to the facts connected with the running , of this train when the killing occurred, but also as an expert engineer, acquainted with and competent to testify as to the running of trains generally. When a witness is testifying as an expert, it is competent to test his knowledge and accuracy, upon cross-examination, by reading to him or having him read extracts from standard authorities upon the subject-
"VVe think it, therefore, admissible for the attorney to use the book in shaping his questions, and it was not error for him to require the witness to examine and read portions of the book, with a view of testing his knowledge by proper questions, and this, so far as the record shows, is all that was attempted to be done in the first examination, when the objection was made. But reading the book to the jury as evidence of the facts therein stated, and as a general rebuttal of the testimony of the expert, stands on a different basis. - It does not appear that this was done during the examination and cross-examination of the defendant’s witnesses, b.ut after they were through, then- the book was introduced again by the plaintiff’s counsel and several pages read to the jury, and no objection was at this time made. In the absence of such objection, made when the book was thus offered and read for this purpose and in this way, there is no reversible error.
See 1 Greenleaf on Evidence (15th Ed.), Sec. 440, note E, in which the following propositions are laid down and cases cited in support: ‘‘ The weight of current authority is decidedly against the admission
It is next assigned as error that the Court excluded the. testimony of Henry Mangrum, who, at the request of the company, made an actual test to see whether the train that caused the death could have been stopped after the engineer saw or could have seen the man on the bridge. This witness proposed to prove that he' ran the same train on a different day, after the accident, over the same place and bridge; that he had the same number of coaches; that, in making the test, as soon as he could, by being on the lookout, see an object standing on the center of the bridge, he applied every means known to him or other skillful engineers, and used every endeavor to stop his train, and that it was impossible to stop such a train before passing over the
The authorities in other States are conflicting upon the admissibility of such evidence, and we have been cited to many cases, all of which we have examined. In our own State, it has been held that the evidence of an expert is not incompetent because of an ex parta examination, investigation, or experiment made by him. Nor is such evidence inadmissible because the experiments are made after the suit and trial has begun, and with a view to being-used as testimony in the case. The objection in such cases goes not to the competency or admissibility of the testimony, which is a matter for the Court to determine, but to its weight and sufficiency before the jury, and especially is this the case where the experiment is made ex parte, and is such that it lies wholly within the power of one party and wholly beyond the power of another party to make such experiment. We have been cited to quite a number of authorities to sustain the contention ' that such evidence is incompetent and inadmissible in cases where the experiment is not equally
It is uniformly 'held that in all such tests, to make them competent, the conditions under which the tests were made must be the same as near as practicable. This requirement appears to have been substantially complied with in this case, and, judging from the testimony offered to be given, the conditions of the test were essentially the same as when the accident occurred.
We are of opinion the trial Judge was in error in not allowing evidence of this test to be introduced under proper instructions to the jury as to its weight. We cannot speculate on what might have been the verdict of the jury if this evidence had been allowed to be introduced. . It was upon a vital point in the controversy. The plaintiff had been permitted to prove by a witness that he had
We have examined all the other assignments of error, and we think none of them are well taken, but reverse simply upon the error indicated.
The appellees will pay the costs of appeal.