Central Railroad & Banking Co. v. Maltsby
16 S.E. 953
Ga.
1892
Check Treatment
Simmons, Justice.

The injury on account of which the action was brought was the mashing of the plaintiff's hand while *631lie was coupling cars as' a “ car- coupler ” of the defendant. The following appeared from the evidence: A train of cars attached to an engine was to be coupled to a single car, and the plaintiff signalled to the еngineer to back the train towards the car. The train came back slowly until within about twelve inches of the car, and stopped. The plaintiff, who had gotten between the train and the car in order to make the couрling, signalled again, doing so with a coupling-stick which he held in his right hand; and at the same time lifted the link with his left hand; but before he сould draw’ his hand out, the cars came together and mashed his fingers. In approaching the car the train was upon a downward grade. The plaintiff’ testified that by his signal he had directed the engineer to come back slowly, аnd that if the train had come in that manner he could have made the coupling without getting hurt; but that instead it jumped back suddenly and with great force. According to the ‍​​​‌​‌‌​‌​‌​​​‌‌​‌‌​​‌‌‌​‌​‌​‌‌​​​​‌‌​​‌​​​​​​‌​‍declaration, this sudden movement was due to the fact that the vаcuum brakes on the engine were out of order. It was alleged that in order to stop the engine, when the first stop was made in coming back, the engineer, instead of putting on the brakes, threw the reverse lever forward, and that this left the cylinders full of steam, so that when the engine started the last time it bounded back in the manner above stated. No witness testified, however, that the brakes were in this condition, or that the engineer failed to use the brakes аnd used the lever instead. On the contrary, the engineer testified that the engine was in good condition, and that in cоming back he did not use the lever at all, but used only the brakes; that he simply let the brake off and slacked the engine, and the train rolled back slowly. The plaintiff’, in rebuttal, testified that three days after he was hurt the engineer said to him thаt at the time of the injury “ the engine was stiff’ in the joint *632and machinery, and' it was all that he could do to manage the revеrse lever and pull her back and forward; that the throttle leaked, and he had to work it altogether with the reverse lever, and he pulled her back down grade and she jumped back.” Hypothetical testimony was introduced to show that if the engine was in the condition alleged, it would jump back in the manner stated.

Unless the statements attributеd to the engineer could be treated as evidence of the defective condition of the engine, thеre was nothing in the testimony to show that such a condition existed or had anything to do with the injury, except in so far as it might bе inferred from what ‍​​​‌​‌‌​‌​‌​​​‌‌​‌‌​​‌‌‌​‌​‌​‌‌​​​​‌‌​​‌​​​​​​‌​‍the plaintiff testified as to the rapidity with which the train came back. Such statements, however, as the engineer may have made out of court, though they may have tended to impeach him, were not evidеnce as to the truth of anything he may have said. Not being a part of the res gestae, they were clearly inadmissible as declarations or admissions against the railroad company. Code, §2206; Chattanooga R. Co. v. Liddell, 85 Ga. 487(2), and cases cited; Vicksburg & Meridian R. Co. v O’Brien, 119 U. S. 99. The utmost the plaintiff could aсcomplish by proving such statements would be to show that the witness was unworthy of credit, and thus destroy the effect of his testimony; but the elimination of his testimony from the case would not tend in any degree to set up as evidence the сontradictory matter stated by the witness out of court. Proof that statements ‍​​​‌​‌‌​‌​‌​​​‌‌​‌‌​​‌‌‌​‌​‌​‌‌​​​​‌‌​​‌​​​​​​‌​‍out of court were at varianсe with the sworn statements in court would not tend to show that the former were true, or give any value as substantive evidence to matter which, except for the purpose of showing that the witness was unworthy of belief, would not be admissible at all. There was consequently no evidence on which the court could base *633instructions to tbe jury to “look to the evidence and determine whether the engine was defective, whether there was a leak in the steam, which escaped into the cylinders and caused the accident.” Moreover, this part of the сharge was calculated to mislead the jury as to the effect of the testimony before them. No explаnation being made elsewhere in the charge, nor, so far as appears, at any other time during the trial, which would restrict the effect of the statements claimed to have been made by the engineer out of court, so that the jury would understand that they were to regard them merely as impeaching testimony, and these being the only stаtements before them as to the alleged defective condition of the engine, the inference from the instructions here quoted would be that they were authorized to consider such statements as evidence on that subject. These instructions, therefore, were clearly erroneous. On this subject see Watts v. Starr, 86 Ga. 392. It was there held that “though declarations made out of court by a witness may be used to impeach the witness, they cannot1 be treated as substantive evidence to establish the facts which they affirm; and a charge of the court so treating them, whether expressly or by necessary ‍​​​‌​‌‌​‌​‌​​​‌‌​‌‌​​‌‌‌​‌​‌​‌‌​​​​‌‌​​‌​​​​​​‌​‍implication, is erroneous. Such a charge is vicious as based on an assumed state of facts, where this class of declarations is the only evidence to which it could apply.” Bеcause of the error stated, the judgment of the court below denying a new trial is reversed.

Other questions in the case are dealt with in the head-notes. As to the exception ruled upon in the first head-note, see Central R. Co. v. Mitchell, 63 Ga. 173. The charge requested, which it is complained the court refused ‍​​​‌​‌‌​‌​‌​​​‌‌​‌‌​​‌‌‌​‌​‌​‌‌​​​​‌‌​​‌​​​​​​‌​‍to give, was sufficiently covered by the general charge as given. Judgment reversed,