Lyke v. Lehigh Valley Railroad

236 Pa. 38 | Pa. | 1912

Opinion by

Mr. Justice Moschzisker,

The accident alleged to have caused the injury to the plaintiff occurred December 21, 1905; suit was brought October 28, 1907, and the trial was held on Monday 8, 1911. According to the proofs accepted by the jury, the plaintiff and several other men were engaged in unloading a monument and markers from a flat-car of the defendant railroad, which was standing on a siding in a certain yard of that company at Towanda, two boxcars being in close proximity. In some unexplained way the switch from the main track was left open, and the shifting engine used in and about the yard, while running backward and pulling several cars, ran on the siding and struck one of the box-cars so as to drive it against the flat-car upon which the plaintiff was working. The impact was so great that it threw the plaintiff into a wagon, which was standing at the side of. the car, and from thence to the ground, severely injuring him. At the point of the open switch there had previously been maintained a danger signal of the type known as a “target,” which showed white when the switch was closed and safe for trains on the main line, and red when open and dangerous; this target had been removed eighteen months before the accident. Expert witnesses testified that signals of this character were usual in the construction of such switches and were necessary to make railroad operation reasonably safe. The plaintiff contended that the defendant company was bound to provide him with a reasonably safe place to work, and that the absence of the target constituted a breach of this obligation and was the proximate cause of Ms injury. The defendant contended that it had been guilty of no negligence toward the plaintiff, that the proximate cause of his injury was the unexplained open switch, that if this switch was left open by any of its workmen the fellow-servant rule would apply; and, furthermore, that the plaintiff was not upon the car at the time of the accident and his ailments did not come from that cause. The issues were submitted to the jury in a fair charge which is not attacked in any of the specifications of error. The verdict was for the plaintiff; the assignments complain of the refusal of binding instructions and of judgment non obstante veredicto for the defendant, and of certain rulings upon the evidence.

The learned court below states: “Whether or not the company was negligent in not having a target at this point; and if so, whether such negligence caused or concurred in producing the plaintiff’s injury were pivotal questions. Had it been in place, would the engineer have seen it and avoided the accident? He was called by the plaintiff, and testified that he was proceeding up the track with his eyes fixed on the Washington street crossing, near the depot (a train being about due)'; that he knew the target was not there and was not looking for it, and that his vision was obstructed by the coal in front of him on the tender, and that he could not have seen it, had it been there. It is contended that this testimony brings the case within the rule of Fullmer v. N. Y. C. & H. R. R. Co., 208 Pa. 598, where a somewhat similar accident was caused by an open switch, and it was held that the absence of the target did not concur in producing the same, because the brakeman, who was on the car, was not looking toward the track, where the switch had been left open, but stood with his back towards it, looking in the opposite ■ direction. In this case (the present one), however, the engineer, whose testimony was somewhat evasive, testified that at the electric light switch, from which point he proceeded up the track, the target, if in place, could have been seen, had it been in place. This switch Avas at the left of the track, as the engineer went north, and but a few feet therefrom, and between him and the Washington street crossing, upon which his attention was fixed. The testimony discloses that this was a straight stretch of track; that from where the engine started north and until after the siding was passed there was nothing in the surroundings to obstruct the view at the point where the switch was located; and a number of witnesses, some of them experienced in railroading, testify in effect that the target, if in place at the time of the accident, would have been within range of the engineer’s vision. The jurors had an opportunity of acquainting themselves with the situation by visiting the locus in quo. We think the evidence warranted the submission of the questions involved to the jury for their determination, and we think there was evidence to warrant the conclusion reached, that the target would have been seen by the engineer, had it been in place. Whether or not the plaintiff was on the car, and whether his injuries were attributable to the accident, or existed prior thereto, were questions with reference to which many Avitnesses were called, resulting in a sharp conflict of testimony. Those questions however, were for the determination of the jury, and we do not feel warranted in disturbing the verdict rendered.”

The foregoing is a fair statement of the case. The engineer testified that he was on the alert and his mind was on his duty; he had been working on the switching engine around this yard for years, and there can be no doubt that had the target been in place he would have known that fact, and would in all probability have seen it and guided his locomotive accordingly, in which event this regrettable accident would have been avoided. The siding was in a railroad yard where shifting was constantly going on, and the maintenance of this switch, which so far as the testimony shows could have been opened by anyone at any time, without the usual target or safety appliance, constituted negligence towards persons like the plaintiff who were thereby placed in danger while working upon the defendant’s cars. That such a switch might be left open was to be anticipated; therefore, ordinary care required a signal, and human foresight had provided the target to guard against this very danger. Under the evidence in this case, we cannot say that the jury were wrong in reaching the conclusions that the defendant was negligent in not maintaining a target, that the engineer would have seen the target had it been there, and that being on the alert he would have avoided the accident. The first two assignments of error are overruled.

The third and fourth assignments are dismissed because they are not in accordance with the rules of this court. They expressly complain of the admission of certain testimony, — depositions taken at a former trial, — and while they indicate what was offered, at the end of each they simply state that the testimony was read to the jury and give a reference to the pages in the appendix where it can be found; hence it is necessary to look elsewhere to know just what testimony got before the jury. The purpose of these specifications of error was to place upon the record and bring before this court the testimony which actually went to the jury, and this they failed to do.

The fifth specification presents an interesting question of evidence. It complains of the admission of the testimony of a witness called by the. plaintiff in rebuttal. The plaintiff in his own behalf testified that he was on the car at the ‘time of the accident, and he was supported in this statement by several witnesses. Some of the witnesses for the defense swore that the plaintiff was not there, but in addition to this the defendant offered at least five witnesses who testified that the plaintiff fiad declared to them either specifically or in effect, that he was not on the car at that time. When the plaintiff was under cross-examination counsel for the defendant interrogated him as to whether he had not stated to these witnesses that he was not on the car but that notwithstanding this, he thought he might get something out of the accident as well as the rest of the boys, and that he did not sooner speak of his injuries because he was advised by counsel to keep quiet. The plaintiff denied all this, but witnesses for the defense testified, in substance, to the matters suggested in the cross-examination. The whole of this cross-examination was full of intimations and suggestions that the plaintiff’s testimony about receiving his injuries on the car was a deliberate fabrication to gain an unjust verdict. Under these circumstances the plaintiff offered the witness in question to prove that he had stated immediately after the accident (almost two years before the institution of his suit and more than five years before the trial)', that he was injured upon the car. “This for the purpose of showing that his testimony in this suit was not a fabrication of recent date.” The court admitted the evidence, and the witness testified that within fifteen or twenty minutes after the accident he saw the plaintiff limping and asked him if he had been hurt, whereupon the latter replied that he was thrown from the car to the ground and hurt his knee or leg.

Testimony of this character is known as evidence of a consonant statement; and this may be defined as a prior declaration of a witness whose testimony has been attacked and whose credibility stands impeached, which, considering the.impeachment, the court will allow to be proved by the person to whom the declaration was made, in order to support the credibility of the witness, and which, but for the existence of such impeachment, would ordinarily be excluded as hearsay. To sustain the admission of such declarations the impeachment must plainly appear and must go to the credibility of the witness. The law is well stated in State v. Parish, 79 N. C. 610, 614, thus: “The rule is, that when a witness is impeached — observe, when a witness is impeached— it is competent to support the witness by proving consistent statements at other times, just as a witness is supported by proving his character, but it must not be construed as substantive evidence of the truth of the facts any more than any other hearsay evidence. The fact that supporting a witness who testifies, does indirectly support the fact to which he testifies, does not alter the case. That is incidental. He is supported, not by putting a prop under him, but by removing a burden from him, if any has been put upon him. How far proving consistent statements will do that must depend upon the circumstances of the case. It may amount to much.or very little.” In Pennsylvania we have a number of cases in which the admission of such testimony has been sustained and others in which it has been refused. Most of these cases are reviewed by President Judge Rice in Commonwealth v. Kay, 14 Pa. Superior Ct. 376, and again in Commonwealth v. Miller, 31 Pa. Super. Ct. 317 and Commonwealth v. Brown, 23 Pa. Super. Ct. 470; in addition to the authorities there mentioned the propriety of evidence of this character was dealt with in Foster v. Shaw, 7 S. & R. 156; Packer v. Gonsalus, 1 S. & R. 526, and it is very generally recognized in such text-books as Stephen’s Digest of Evidence (Chase Edition) 235; 1 Greenleaf on Evidence (15th Ed.) 615; Wharton on Evidence, sec. 570; Starkie on Evidence (10th Ed.) 253. While the authorities are not altogether consistent, yet in a case like this, where a chief defense was that the plaintiff’s testimony was perjured and he was attacked on cross-examination and otherwise by intimations that his course of conduct concerning the accident was not an honest one and that he had fabricated his claim in order to secure a verdict, and where his credibility was further impeached, by proofs of alleged inconsistent and contradictory statements upon a point vital to his case, and by evidence that he had said nothing of his injuries immediately after the accident when it would have been natural for him to speak, and that he had endeavored to excuse this on a plea of advice of counsel, there is ample authority to sustain the admission of the evidence in rebuttal. The testimony simply went to a collateral issue, viz, the credibility of the plaintiff, and it was so explained to the jury. Numerous witnesses were produced on each side as to the substantive facts involved in the main issues, whether the plaintiff was upon the car at the time of the accident and whether he received his injuries in that way; and, although these matters were incidentally covered by this other evidence, we cannot think that it could have had any material weight with the jury in determining those issues. However this may have been, to a considerable extent the admission of such testimony is a matter to be decided in each case by the trial judge in the exercise of a wise discretion and depends largely upon the character and degree of impeachment indulged in by the opposite party. Here the jury had the testimony of numerous witnesses for the defendant to declarations by the plaintiff contrary to his evidence given at the trial, and this with the other impeachments, despite the assertion of counsel for the defense, in objecting to the rebuttal testimony, that he did not so intend, could well be taken as conveying the charge that the plaintiff’s testimony was not the story told by him from the time of the accident but one concocted for the purpose of the trial, or what is known in the law as a recent .fabrication; therefore the trial judge was within his right in permitting the plaintiff to show that his testimony at the trial was consistent with his declarations made a few minutes after the accident and years before the suit was brought. Whether or not the declarations then made were for the ■ purpose of putting him in a position subsequently to bring suit against tbe defendant, was for tbe jury to consider in passing upon the weight of the evidence.

The writer of this opinion had occasion when in the Common Pleas of Philadelphia County to discuss the general subject with which we have been here dealing, in the case of Commonwealth v. Mosier, 13 Pa. D. R. 421, and the authorities upon the character and method of impeachment which justifies the admission of evidence of consonant statements will be there found reviewed and stated at large. It is not usually permissible to support the credibility of a witness by evidence that he had made a former statement similar to his testimony in the case on trial, and the best considered authorities hold that evidence of this character should not be allowed except in rare instances where the credibility of a Avitness is impeached in such a manner and to such an extent that the trial judge feels convinced that the witness is entitled to the support. Where this is so, and proper instructions are given to the jury concerning the real purpose and value of the testimony, no harm is likely to follow. In the present case instructions were given in such plain terms that the jury must have understood that the office of the testimony was simply to support the credibility of the plaintiff, and that, if believed, it was not to be taken as evidence, either direct or corroborative, of the facts contended for by him; further, that its weight was entirely for them. Under the circumstances we are not convinced that the learned court below committed reversible error in admitting the rebuttal testimony, and the fifth assignment is overruled.

The sixth assignment complains that the trial judge struck out a declaration by the defendant’s engineer to the effect that, if there had been a target upon the switch it would not have made “any difference” in his running on the siding at the time of the accident. The court ruled that this was not a statement of fact but a mere conclusion of the witness, that he could state all the surrounding facts but it was for the jury to draw the conclusions; in this we see no error, and the assignment is overruled.

The judgment of the court below is affirmed.