Moore v. Chicago, St. Louis & New Orleans Railroad

59 Miss. 243 | Miss. | 1881

Cooper, J.,

delivered the opinion of the court.

The appellant sued the Chicago, St. Louis & New Orleans Railroad Company to recover damages for an injury' sustained by him in being forcibly ejected from one of its trains while the same was in motion. At the April Term of the Circuit Court of Marshall County there was a trial of the cause which resulted in a verdict and judgment for the plaintiff. The defendant moved for a new trial, which was granted, and thereupon the plaintiff excepted to the action of the court in granting the new trial, and a bill of exceptions was signed, embodying the evidence introduced. At the October Term of the court another trial was had, resulting in a judgment for the defendant. The plaintiff made a motion for a new trial, which was overruled ; and the plaintiff again excepted, took another bill of exceptions, and now prosecutes this appeal, assigning for error the action of the court below in granting the new trial asked by the defendant, and in refusing that asked by himself. On the first trial the plaintiff, in rebuttal of the evidence offered by the defendant, introduced as a witness one Brewer, who delivered testimony unfavorable to the plaintiff, who, thereupon, for the purpose of impeaching the credibility of the witness, offered in evidence a letter which had been previously written by the witness to one Gray, in which he made statements directly contradictory to the testimony given by him. The admission of this evidence was objected to by the defendant at the time, and its admission was one of the grounds of its motion for a new trial. If it was error to permit the evidence impeaching the credibility of the witness to be introduced, the new trial was rightly granted.

It is argued by counsel for the appellant that the court did not err in permitting this evidence to be introduced, because the plaintiff was entrapped by the witness into introducing him, and was surprised by his testimony. While we recognize the right of a party who has been entrapped into introducing, and is surprised by the testimony of an unfriendly witness, to impeach his credibility by giving evidence of other and different statements made by him, we nevertheless think it was error to permit it to be done in this case, for the reason that no showing was made by the plaintiff, by his own affidavit or otherwise, that the testimony of the witness operated as a surprise on him, and because we think it fairly inferable from the other facts shown in the record that the plaintiff and his counsel anticipated that the witness would testify in effect as he did, and introduced him after they had received information that he had declared his intention not to adhere to the statement of the facts as contained in his letter. The rule is that a party cannot impeach the credibility of a witness introduced by him. But to this rule there are certain exceptions, created for the protection of litigants against the fraud of witnesses who are friendly to the opposing party. But where the facts or circumstances suggest the presumption that the party introducing a witness does so with knowledge of the fact that his testimony will not be in accordance with those things which he is professedly introduced to prove, some evidence at least of surprise ought to be required to overcome the presumption, for otherwise the. exception would absorb the rule, and let in all the evils which the rule was established to prevent. A careful examination of the bill of exceptions satisfies us that the impeaching evidence ought not to have been permitted, and consequently that the new trial was properly granted to the defendant.

On the second trial the plaintiff introduced certain witnesses, who testified that they were not present when the plaintiff received his injuries, and thereupon the plaintiff’s counsel asked them if they had not previously stated to certain parties, naming them, that they were present and saw the injuries inflicted. The defendant objected to this course of examination, giving as a reason for his objection that the plaintiff ought not to be permitted to impeach the credibility of his witnesses. The objections were sustained by the court, and this action is now assigned for error. In support of this assignment it is argued that the proposed course of examination ought to have been permitted, because the plaintiff was surprised by the testimony given by the witnesses; but that, if it was not permissible on that ground, yet the plaintiff had the right to thus examine his witnesses for the purpose of refreshing their recollections. It is clear that the examination ought not to have been permitted for the purpose of impeaching the credibility of the witnesses, for they had testified to nothing either in favor of or against the plaintiff, and there was no necessity to impeach their credibility for his protection. Their testimonj', as the case then stood, could not be considered by the jury at all, because it amounted to nothing, and as the only legitimate effect of impeaching evidence is to subtract from or overthrow the testimony of the witness, it follows that it ought not to be permitted in cases in which there is nothing to subtract from or overthrow.

We cannot consider the case now as it would have been, if the plaintiff had stated in the court below his purpose to be only to refresh the memory of his witnesses, and not to impeach their credibility. The objection interposed by the defendant was predicated on the supposition that the intention was to impeach their credibility. The court acted on this objection as stated, and the plaintiff excepted to the ruling of the court on the point as thus presented. He cannot now for the first time suggest that his proposed course of examination was legitimate for a purpose not disclosed in the court below. To permit this, would be for this court to review, not the case actually tried in the lower court, but one which might have been tried.

The court did not err in declining to direct the persons, whose names were suggested by the plaintiff, to be sworn as witnesses in the case. If such power exists at all in the court, which, we think admits of grave doubts, its exercise must be left wholly in the discretion of the presiding judge, and a refusal to exercise it would not be a ground of error, whatever might be the effect of an unwarranted exercise of it. The remaining error assigned is that a new trial ought to have been granted because of the newly discovered evidence by the plaintiff.

The newly discovered evidence was that of a witness who, some days after the occurrences in which the plaintiff was injured, had a conversation with the conductor of the defendant, who the plaintiff testified had inflicted the injuries on him, in which conversation the conductor admitted to the witness that he had kicked the plaintiff from the train. It is apparent that these admissions would not have been admissible in evidence for any other purpose than that of impeaching the credibility of the conductor, who had testified on the trial as a witness for the defendant, and had stated that he had had no part in inflicting the injury on the plaintiff; for these declarations were not a part of the res gestee, and only on that ground could they bind the defendant. Dickman v. Williams, 50 Miss. 500; 1 Grreenl. Evid. § 113; Sisson v. Cleveland Railroad Co., 14 Mich. 489; Smith v. Betty, 11 Gratt. 752; Thallhimer v. Brinckerhoff, 4 Wend. 394; Virginia Railroad Co. v. Sayers, 26 Gratt. 328. But a new trial will not be granted on the ground of newly discovered testimony, the only effect of which would be to impeach the credibility of a witness. 3 Graham & Waterman on New Trials, 1074.

We are therefore of opinion that there is no error in the record, and the judgment is

Affirmed.