105 F. 733 | 6th Cir. | 1901
after stating the case as above, delivered the opinion of the court.
We agree with the learned judge who presided at the trial in the court below that the defendant was not required to block the frog during the progress of the construction, and that the only duty which it owed to the plaintiff’s intestate, under the circumstances presented by the evidence, was to give him such notice and warning, as would-
The only direct evidence of notice to Doty was the testimony of Jeffries, the conductor of the train; and it is suggested here, for the first time in the progress of the case, that his credibility as a witness was put in issue by his relation to the parties and to the subject-matter of the controversy, and that the cause should have been submitted to the jury upon that issue. The suggestion is that the witness, as an employó of the defendant, whose duty it was to bring the bulletin concerning the work at Muneie to the knowledge of the trainmen, had an interest in showing that he had performed the duty, and strong motive to falsely represent that he had done so, if in fact he had not performed the duty, and that this interest and possible motive raised a question as to his credibility, which should have been considered by the jury. The testimony of the witness was not contradicted by that of any other witness, nor was it brought in question by the cross-examination nor by the admitted facts of the case; and, outside of the suggested interest and motive, there is not a fact- or circumstance in the case which tends to raise a doubt as to the truth of his testimony. It is said in Elwood v. Telegraph Co., 45 N. Y. 554, that:
“Very clear and decisive evidence was required in this case to establish that the message which came over the defendant’s wires was not communicated in tlie natural and ordinary manner. From the necessity of the case, such evidence as there is to that effect proceeds wholly from parties having an important interest in the question. Kaeh of them, if guilty of the negligent act, would have the strongest motive to deny it, as the admission would subject him or her to severe responsibility for the consequences. This is a controlling consideration in determining whether the statements of these witnesses should be taken as conclusive.”
But in that case the admitted facts necessarily raised the question of the credibility of the witnesses. A telegram had been received at Pithole over the wires of the telegraph company, and delivered by the company’s agent at Pithole as coming from Titusville. The telegraph company denied sending it from Titusville., and the operators at the Titusville office testified that it was not sent by them from that office, and the court say that:
“The only theory by which the testimony of the operators is sought to be reconciled with the conceded fact of the receipt of the message at Pithole over the defendant’s wires is that the wires were cut by McCarthy, or a confederate, at some intermediate point, and a machine there applied, whereby the message was transmitted. And it is claimed that the court was bound to solve the difficulty by presuming that this was actually done, rather than*736 to permit the jury to pass upon the credibility or accuracy' of' recollection of the witnesses.”
In Hankinson v. Electric Co., 175 Mass. 271, 56 N. E. 604, decided •February 28, 1900, brought to recover damages for personal injuries occasioned the plaintiff by being struck in the eye by a- burnt carbon thrown by one Bayrd, who was in the defendant’s employ, Bayrd testified:
“I did not throw it at the team for any purpose connected with my business, but to attract his attention. I wanted to attract his attention, so as to speak to him; and I threw the carbon at the team, so as to attract his attention, so that 1 might speak to him, and not for any business connected with the company.”
The defendant contended that there was no evidence on which the jury could find that the carbon was thrown by Bayrd for the purpose of performing the work of the defendant, but the court say:
“When the defendant’s liability depends upon the purpose with which an act that is nearly neutral, so far as outward manifestations are concerned, is done, it would be strange if the jury were not at liberty to disbelieve the testimony of one employed by the defendant as to his mental processes. In that connection it was proper for the jury to take into consideration the fact that not only was this witness at the time of the trial in the employ of the defendant, but also that he had been taken back into its employ only two weeks before the trial; and the jury may have also believed that, from the terms in which his testimony was couched, it was evident that the witness had a particular knowledge of what the law required to exonerate the defendant from liability. We are of opinion that it was a question for the jury whether the explanation given by Bayrd of the purpose he had in throwing the disused carbon was true or not.”
The impeaching circumstances in that case, outside of the mere fact that the witness was in the employ of the defendant, justified its submission to the jury.
In Bank v. Deifendorf, 123 N. Y. 200, 25 N. E. 404, the court say:
“The claim that the plaintiff’s cashier was a disinterested witness, whose testimony must be regarded as controlling if not contradicted, cannot be sustained. Aside from the alleged improbability of his statements, he was the financial agent of the plaintiff, and the owner of one-fifth of its capital stock, and, aside from his direct interest, responsible to his principal for the care, fidelity, and prudence with, which he discharged his official duties. His interest in the transaction was co-extensive with that of the plaintiff, and brings him directly within the cases which hold that the credibility of such a witness is a question for the jury to determine.”
In these cases there were not only impeaching circumstances which necessarily raised the question of credibility, but it was insisted upon by the party interested. In the case at bar the question was neither made nor in any way suggested by the plaintiff or his counsel at the trial, nor do the facts and circumstances of the case justify an impeaching presumption against the credibility of the witness, founded upon his mere relation to the parties and to the subject-matter of the controversy, which should overcome the counter presumption that, as an uncontradicted witness, testifying under oath, he spoke the truth. The judgment of the court below therefore will be affirmed.