99 Mich. 1 | Mich. | 1894
Lead Opinion
The facts in this case will be found fully stated in 91 Mich. 538. No claim is made by the defendant's counsel that the record differs from the former one, while the only difference claimed by plaintiff's counsel appears in their brief in the following language:
“ It appeared from the other record that one or two minutes elapsed from the time of looking and listening and going upon the track. It will be seen by this record that it does not appear that any time, to speak of, elapsed from the lime plaintiff went in front of horses, and looked and listened, and driving upon the track.”
The majority opinion then filed is the settled law of the ease, and cannot now be reopened. The majority opinion did not discuss the question of the contributory negligence of the plaintiff, while the minority opinion held that the plaintiff's own negligence was a bar to his recovery. It is unnecessary to discuss it now, as the majority of the Court are of the opinion that the question was one for the jury. It remains, therefore, to discuss and determine errors raised upon the new trial, and not then before the Court:
“State to the jury if, some time immediately after this injury had taken place, whether this matter — whether the fact of whether they had given signals at this crossing— was talked over among the men that were there that day.”
This was objected to as incompetent, and the objection sustained. Plaintiff's counsel then said: “What I offer to show is this — ” Defendant's counsel interrupted, and objected to any statement of what he proposed to prove, as
In Menard v. Railroad Co., 150 Mass. 387, the negligence alleged was the failure to ring the bell, and the testimony was of a similar character. The court said:
“ Ordinarily, all that a witness can say, in such a case, when called to prove that a bell was not rung, is that he did not hear it. Such a statement, with no accompanying facts, is merely negative, and of no value as évidenee. But attending circumstances may be shown, which make the statement strong affirmative evidence.”
In a recent case in the same court, decided last June, the plaintiff relied on the testimony of two men working near the crossing, one of whom testified that he did not hear any bell, adding that he0 noticed nothing about the bell at the time; and the other, that he did not hear any bell. The court, in deciding the case, said:
“If their situation and occupation had been such that naturally they would have observed whether the bell was or was not rung, then the fact that one or both of them said they did not hear it rung would be evidence tending to show that it was not rung. But the testimony does not ■disclose such a state of things. On the contrary, both witnesses had their attention engrossed by the building of the fence, and neither was interested, for any reason, in the approach of the train. To say that one did not hear, when there was not only no reason why he should hear, but, from his occupation, reason why he should not hear, is very little, if at all, stronger than to say one does not remember :to have heard.” Hubbard v. Railroad Co., 159 Mass. 320.
In the recent case of Horn v. Railroad Co., 4 C. C. A. 346, 54 Fed. Rep. 301, this precise question was before the court; Circuit Judges Jackson and Taft and District ■Judge Swan sitting in the case. Several witnesses had testified positively that they heard the whistle sounded. Negative testimony was then introduced, of the same character as that in the present case.. In rendering the opinion, the court say:
*6 “In the very nature of things, their affirmative testimony that the warning was given must be accepted as proof of that fact, notwithstanding an equal or greater number of witnesses failed to notice it, from whatever cause. There is, in such cases, no conflict of evidence as to the matter in question. The observation of the fact by some is entirely consistent with the failure of others to observe it, or their forgetfulness of its occurrence.”
For these errors the judgment should be reversed, and a new trial ordered.
I cannot agree with my Brother Grant in the conclusions which he has reached.
Respecting the first question discussed, I fail to see that the offer to show was more prejudicial than the question itself. Counsel did not offer to show that the parties present had stated that the whistle was not given, but that immediately after the collision their attention had been called to the question. I am not clear that the testimony was not competent as tending to show that the witness did not rely upon his recollection, at the time of the trial or long subsequent to the event, of the fact that the whistle was not blown, but that his attention was immediately called to the question, and it was then and there determined by him, and fixed in his mind.
Respecting the testimony of the witness Chapman, it is apparent from this record that the witness, his brother, and Nitz were at work east of the place of the accident. The wind was blowing from the north-west, and the train was running south. Chapman had testified that he had heard the train whistle every day at Beck’s crossing, and in answer to the question said that he heard nothing at all on the approach of the train in question, — only a little “toot” of the whistle (evidently the whistle given within a few rods of the collision), — and that he heard the train
Concurrence Opinion
I concur with my Brother McGrath in affirming this case.
I agree with my Brother Grant that the court properly sustained the objection to the testimony offered to show that the men talked about the signals during the afternoon following the accident. Such testimony was not a part of the res gestae, and, if given, would have been in the nature of hearsay. Even the fact that the question was discussed would have tended to show that it had been questioned, and would have been liable to be taken as evidence to support the opinions of the jurors, one way or the other Its only possible bearing was to reinforce the testimony of the witness, by showing that he or some one else said, soon after the accident, that the bell had not rung, and that, therefore, his statement that it did not ring was more probable, or his recollection of the transaction more liable to be accurate But all this testimony was inadmissible. The court sustained an objection to the question, and there is nothing to indicate-that the offer was made in bad faith. It was not made until the court permitted it, which I think was within his discretion. He ruled the testimony out, and we should not. assume that the jury disregarded his ruling.
As to the testimony of Chapman in relation to not hearing the signals, I think there were circumstances that made the testimony admissible. The wind was from the north
I think the judgment should be affirmed.