132 P. 1103 | Okla. | 1913
It is first urged that the court erred in permitting the plaintiff leave to amend his petition after the testimony for both plaintiff and defendant had been concluded, and after the court had charged the jury. In making the request counsel stated:
"The plaintiff asked leave to amend his petition so as to allege that the crossbar complained of was set below its proper position, instead of bent or sagged below its proper position, in order that the pleadings may conform to the proof."
The defendant thereupon objected to the amendment being allowed, because the evidence in the case had closed, the court had charged the jury, all the witnesses had been discharged, and that the amendment proposed changed the issues in regard to the crossbar. The original petition charged that the injuries sustained were caused by the plaintiff being struck by a crossbar, which was bent or sagged below its proper position a distance of from four to six inches underneath the top of the lift. The amendment charged that the crossbar was set below its proper position. Did the amendment change the cause of action? In such cases, so long as the plaintiff adheres to the injury originally declared upon, a change in the manner of causing the injury is not a new cause of action. The test is whether the proposed amendment is a different matter, *577
another subject of controversy, or the same matter more fully or differently laid to meet the possible scope and varying phases of the testimony. Lookabaugh v. Bowmaker,
Defendant's requested instruction No. 4 was properly refused. To have so instructed the jury would have been the equivalent of directing a verdict for the defendant as to the issue of negligence in either the construction or maintenance of the bar. The charge of negligence in this particular was sufficiently shown by the evidence. Likewise requested instruction No. 5 was properly refused. It is fundamental that, where the testimony *579 is conflicting upon a material issue of fact, the question presented is for the jury.
Assignments of error Nos. 6, 7, 8, 9, 10, may properly be considered together. All deal with the refusal to instruct the jury as requested by the defendant. It is a very general rule that it is not error for the trial court to refuse to give a requested instruction upon a proposition, when the same question is submitted to the jury by the court in its charge, and when the instructions given, taken as a whole, fairly submit all the law applicable to the case. Atchison, T. S. F.Ry. Co. v. Marks,
Finally, it is urged that the court erred in refusing to give the following instruction:
"The court instructs the jury that in this case the plaintiff has not introduced the doctor that he claimed was called to examine and treat him after the injury, and has not introduced any physician as to the extent of the injuries, and you may consider this fact, in connection with the other evidence, in determining what injuries, if any, the plaintiff sustained; and in this connection the court charges you that if the plaintiff has failed to introduce witnesses who, if present, would testify to material facts, and has failed to account for his failure to introduce such witnesses, then you have the right, if you so decide, to consider that, if said witnesses were present, their evidence would be unfavorable to the plaintiff."
On its face the instruction is objectionable. But one physician, Dr. Logan, had ever attended the plaintiff in connection with his injury; while the instruction directs the jury's attention to the fact that if the plaintiff has not introduced or explained his failure to introduce, not alone the doctor that was called to see him, but any physician, to testify as to the extent of the injuries sustained, the jury would have the right *580
to draw unfavorable inferences therefrom. Obviously this is not the law. Courts are not required to give instructions which necessitate qualification or modification. If not good as requested, it is not error to refuse them. Friedman v. Weisz,
Independent, however, of the foregoing objection, the court properly refused to so instruct the jury. It does not appear that Dr. Logan was subpoenaed as a witness. He resided at Lehigh, in Coal county, a distance of but four miles from the place of trial. It appears from the plaintiff's testimony that Dr. Logan was called to see him immediately after the accident, but on account of plaintiff's suffering no examination was at the time made, or until some six weeks afterwards. Other witnesses, Hewle Hampton, John Moore, Mrs. Garrison, and Leonard Garrison, testified concerning plaintiff's injuries. Hampton and Moore boarded with Mrs. Garrison, where plaintiff boarded and roomed, and where they had full opportunity to become informed of his physical condition. There is a rule of evidence that when a party has it in his possession or power to produce the best evidence of which the case in its nature is susceptible, and withholds it, the fair presumption is that the testimony is withheld from some sinister motive, and that its production would thwart his evil or fraudulent purpose. A further rule requires that where a party has the means of producing a witness who possesses peculiar or higher knowledge of the transaction, and fails to produce him, this affords ground for the suspicion that the testimony of such better informed witness would be unfavorable to his claim. But these rules do not require the production of the greatest amount of evidence, which it is in the power of the party to produce, as to any given fact. All the law requires is sufficient proof, and a litigant is not bound to produce and examine all the witnesses who know anything of the transaction, or, failing to do so, to have the presumption indulged against him that such witness, if produced, would not support his right. Central ofGa. Ry. Co. v. *581 Bernstein,
Defendant was informed on the first day of trial that Dr. Logan had been called in attendance upon the plaintiff. Presumably his attendance, if procurable by plaintiff, could likewise have been obtained by defendant if desired. The doctor's testimony was no longer privileged, under section 5842, Comp. Laws 1909. The plaintiff having offered himself as a witness and testified specifically in regard to his injuries, the doctor's testimony would have been competent either for or against him. Rosser v. Pease, ante,
The remaining assignments of error, not having been argued, are deemed to have been abandoned.
The judgment of the trial court should be affirmed.
By the Court: It is so ordered. *582