299 P. 529 | Cal. | 1931
Lead Opinion
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *544 This is an appeal by the plaintiffs from a judgment on a directed verdict in favor of the defendants. The case was originally heard in department. A hearing in bank was ordered. Thereafter an order was entered affirming the judgment. In due course a rehearing was granted in order that further consideration might be given to the effect of the disputable presumption declared by subivision *545 4 of section 1963 of the Code of Civil Procedure, viz., "that a person takes ordinary care of his own concerns", in the light of the particular circumstances of this case. The effect of that presumption was discussed at length in the opinion. The cause of action arose before the enactment of section 141 3/4 of the California Vehicle Act in 1929 (Stats. 1929, p. 1580), and the effect of that section on the cause of action of the plaintiffs as heirs of the deceased, who was a guest of the defendant Ireland at the time the accident occurred, was also considered. A second rehearing was granted for two reasons, first, because the effect of said section 141 3/4 was also involved in a case then pending on appeal in this court and undetermined, and it seemed desirable to give further consideration to the subject in the light of the arguments to be made in that case; and, secondly, because we were willing to give further consideration to the effect of the foregoing presumption as applied to this case.
It was contended in the other pending case that the enactment of said section 141 3/4 operated as an abatement of the cause of action therein, as it was and is contended in this case that because of said enactment the cause of action had abated as to the defendant Ireland. [1] Since the rehearing herein was granted the question of the effect of that section on the present action against the defendant Ireland has been set at rest against the contention of that defendant by the determination in that case wherein it was held that said section was not retroactive in its operation. (Krause v. Rarity,
The former opinion in this case correctly stated the essential facts and discussed at length the effect of said presumption. The facts so stated and the discussion of the law therein to the extent hereinafter quoted, are adopted for the purposes of this opinion. They are as follows:
"This appeal is taken from a judgment for defendants upon a directed verdict returned by the jury in an action brought by the widow and four minor sons of Robert S. Smellie, deceased, to recover damages for the death of said decedent, who was killed when the automobile truck in which he was riding as the guest of defendant L. Ireland, the driver and owner thereof, was struck by a train of defendant *546 Southern Pacific Company. The court held at the conclusion of plaintiffs' case that the evidence established as a matter of law contributory negligence on the part of said decedent and directed a verdict to be returned in favor of defendants. The correctness of this ruling is here challenged.
"The accident occurred at about 5 o'clock p.m. on June 25, 1926, in the city of Madera. The truck in which decedent was riding was of the Reo manufacture and was used by Ireland in a general trucking business conducted by him. Ireland was called by plaintiffs as their witness under the provisions of section 2055 of the Code of Civil Procedure. He testified that he turned off the state highway, on which he had been traveling in a northerly direction, into Ninth Street. The situs of the accident seems to have been in an outlying district of the city of Madera. He proceeded easterly on Ninth Street to a point between twenty and twenty-five feet from the westerly rail of a side-track of defendant Southern Pacific Company which intersects Ninth Street, and there brought his car to a stop to permit a freight train to pass. No signal of any kind was maintained at the intersection. The freight train was moving south at a speed of five or six miles an hour, and six or eight cars remained to pass the intersection when Ireland brought his truck to a stop. East of the side-track and parallel thereto was the main-line track of the Southern Pacific Company. The distance between the center line of the side-track and the center line of the main track was thirteen feet. Both Ireland and decedent had resided in Madera for many years and Ireland testified as to his familiarity with the crossing. Doubtless the decedent was also generally familiar with existing conditions. The moment the caboose, which was the rear car of the freight train, cleared the crossing Ireland started his truck and crossed the side-track and in an attempt to cross the main track the auto truck was struck by the Fresno Flyer, northbound, which was traveling on the main track at a rate of speed estimated to be about fifty-five miles an hour. The accident happened so quickly that not more than an interval of a second intervened between the time Ireland saw the train and the time his truck was hit by it. He looked before starting, but the outgoing freight train blocked a view of the main track, and consequently his view to the *547 south was obstructed and he did not see the approaching passenger train. He listened, but did not hear the passenger train because of the noise made by the passing freight train. The distance which the passenger train traveled before it could be brought to a stop furnishes some evidence as to the speed at which it was moving. Upon cross-examination by counsel for the co-defendant, Southern Pacific Company, Ireland testified that both he and Smellie looked before Ireland started the truck and Smellie, who was seated by his side, said, `It's all clear, let's go.' The testimony of Ireland was not contradicted by that of any other witness. Respondents did not offer any evidence in their own behalf, but upon the conclusion of plaintiffs' case made motions for nonsuits and directed verdicts, and the court granted the motions for directed verdicts, upon which judgment appealed from was entered.
"In granting defendants' motion for a directed verdict, the trial judge expressly stated that he discarded entirely the testimony of the defendant Ireland, that deceased had said to him just before the truck was started on its fatal trip across the railroad tracks, `It's all clear, let's go.' He based his order for a directed verdict upon the facts and circumstances shown by the evidence to have existed at and immediately prior to the collision, leaving entirely out of consideration the statement of Ireland that the deceased had said `It's all clear, let's go.' The trial judge disregarded this testimony of Ireland for the reason, as stated by him, that the jury in the case, if the cause should be submitted to them for decision, had the right, if they disbelieved the testimony of Ireland, to reject the whole of it. Notwithstanding the fact that the trial court disregarded the statement of Ireland as to what the deceased said just prior to the collision, the respondents have insisted during all the stages of this appeal that the statement attributed to the deceased by the defendant Ireland was not only properly before the court, but that it of itself furnished sufficient legal grounds to justify the order of the trial court directing a verdict in favor of the respondents. In so doing, however, respondents have not abandoned the ground upon which the trial court granted said motion, and they still insist that the order granting a directed verdict *548 should be affirmed irrespective of any question of this testimony of the defendant Ireland.
"In our former opinion . . . in bank, the judgment was affirmed upon the ground that the evidence before the court, inclusive of that given by the defendant Ireland as to the last words of the deceased showed, as a matter of law, that said deceased was guilty of contributory negligence. The rendition of this opinion brought forth not only a petition for a rehearing from the appellants and an answer thereto by the respondents, but numerousamici curiae have been granted permission, and have taken advantage of such leave, to file briefs in support of the respective contentions of the parties hereto.
[2] "The legal battle thus waged by these various participants has centered around Ireland's testimony as to the decedent's last words, `It's all clear, let's go,' and the force and effect to be given to this testimony. The appellants, and those amici curiae arrayed on the side of the appellants, contend that the testimony of Ireland in this regard only produced a conflict in the evidence upon the question of whether the deceased was guilty of contributory negligence, and therefore it was the duty of the court to disregard this conflict and submit the case to the decision of the jury. The basis of this argument by the appellants, and those allied with them, is that the plaintiffs at the trial in the lower court were entitled to avail themselves of the presumption that the deceased took ordinary care of his own concerns (sec. 1963, subd. 4, Code Civ. Proc.), and that the testimony of Ireland as to the statement made by the deceased only produced a conflict in the evidence, which conflict, upon a motion for a directed verdict, the court was in duty bound to disregard and submit the issue thus tendered to the consideration of the jury.
"On the contrary, the respondents, and those amici curiae supporting the cause of the respondents, contend that the presumption relied upon by appellant, being merely a disputable presumption was entirely overcome and dispelled by the testimony of Ireland, and therefore that the undisputed evidence before the trial court showed that the deceased was guilty of contributory negligence in that he advised Ireland that the way was clear and that they should proceed to cross the railroad tracks. Accordingly, the respondents *549 and those amici curiae insist that the order of the trial court in directing a verdict upon this state of the evidence was proper and that the judgment based thereon should be affirmed.
"The question is, therefore, directly raised and presented as to whether this presumption, that the deceased exercised due care for his safety, has been overcome and dispelled as a matter of law by the testimony of Ireland. [3] That a presumption is evidence and may in certain cases outweigh positive evidence adduced against it has long been the settled law of this state. (People v. Milner,
"A few quotations from the foregoing authorities will, we think remove all doubt from this question. In People v. Milner,supra, at page 179, the court said, `Against a proved fact, or a fact admitted, a disputable presumption has no weight, but where it is undertaken to prove the fact against the presumption, it still remained with the jury to say whether or not the fact has been proven; and, if they are not satisfied with the proof offered in its support, they are at liberty to accept the evidence of the presumption.' In Sarraille v. Calmon, supra,
at page 655, the court said, `The presumption of nonpayment arising from possession of uncanceled notes, admittedly executed by defendant, was evidence that they were not paid, and produced a conflict with the evidence of defendant's witnesses.' InPeople v. Siemsen, supra, at page 390, we find the following language: `But the court, in determining whether or not to accept Mr. Greeley's testimony, had a right to consider the presumptions raised by law. One of these in that "official duty has been regularly performed"; another, that "a writing is truly dated" . . . these presumptions, while disputable, are in themselves evidence (citing authorites), and will support a finding made in accordance with them, even *550
though there be evidence to the contrary.' In Pabst v.Shearer, supra, at page 242, this court stated the rule as follows: `It must be remembered that a presumption declared by statute, although disputable, is itself evidence, and that it is for the trial court to say whether the evidence offered to overthrow the presumption has sufficient weight to effect that purpose.' In Thompson v. Davis, supra, at page 493, this court again said: `Under the express provisions of section 164 of the Civil Code, as that section has read since the year 1897, such deed to the wife raised the presumption that the title was thereby vested in her as her separate property. This presumption is, to be sure, not conclusive. "It may be overcome by evidence sufficient to satisfy the court that the property in question, although conveyed to the wife, was, in fact, community property." (Citing authority.) But the presumption, "although disputable, is itself evidence, and . . . it is for the trial court to say whether the evidence offered to overthrow the presumption has sufficient weight to effect that purpose".' In Olsen v.Standard Oil Co., supra, at page 24, this court sustained an instruction in the following words: `The presumption is that every man obeys the law, and the presumption in this case is that the plaintiff was traveling at a lawful rate of speed and on the proper side of the highway at all times. This presumption is in itself a species of evidence and it shall prevail and control your deliberations until and unless it is overcome by satisfactory evidence.' In Pacific Portland Cement Co. v.Reinecke, supra, at page 504, we find the following language: `The presumptive evidence of the time of the making of the endorsement and guarantee and the consideration therefor, may be resorted to in aid of the findings, even though it be assumed, as counsel for the defendant contends, that it stands alone and was opposed by direct evidence to the contrary. The general rule that, as against a proved fact, or a fact admitted, a disputable presumption has no weight, is subject to the exception that where, as in the present case, an endeavor is made to establish a fact contrary to the presumption, the fact in dispute still remains to be determined upon a consideration of all of the evidence, including the presumption.' In Mar Shee v. MarylandAssur. Corp., supra, at page 7, this court has again said: `There seems to be some confusion in the decisions of this state with respect *551
to the extent to which, under various circumstances, presumptions of law are to be regarded as evidence of facts. The code expressly declares them to be evidence (Code Civ. Proc., secs. 1957, 1963), and admonishes the trial judge to instruct the jury on all proper occasions "that they are not bound to decide in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a . . . presumption". (Code Civ. Proc., sec. 2601, subd. 2.) Among the decisions of this court recognizing and applying the foregoing rule may be mentioned the following: Sarraille v. Calmon,
[4] We pause at this point to consider certain contentions especially stressed by the respondents on rehearing. It is insisted that the language of subdivision 2 of section 2061 of the Code of Civil Procedure contained in the foregoing quotation from the Mar Shee case is entirely inappropriate to constitute a presumption as evidence in a civil case. The contention seems to be that the use of the words "which do not produce conviction in their minds", as applied to a civil jury case, would give the presumption a weight which could only be overcome by evidence "producing conviction" in the minds of the jurors, and that this would be equivalent to the requirement that the proof against the presumption must be to a moral certainty, whereas in a civil case proof by a preponderance of the evidence is all that is required. In order to overcome the presumption of innocence in a criminal case the proof must, of course, be to a moral certainty and beyond a reasonable doubt, and when the language of subdivision 2 of this section is considered apart from the other provisions of the same section or of other sections of the code, and apart from the great body of the law of this state on the subject, there would seem to be some merit in the respondent's position. But when we turn to subdivision 5 of the same section (2061) we find that the distinction between the proof required in a civil case and a criminal case is carefully pointed out and the jury is to be instructed accordingly. We then turn to section *552
1957 of the same code and find that presumptions are declared to be evidence, indirect evidence, it is true, but nevertheless a species of evidence sufficient to settle a question of fact in the absence of "ascertained and established facts". (Lincoln v.French,
[6] It is argued by the defendants that since the statute itself (sec. 1963, Code Civ. Proc.), before enumerating the disputable presumptions, declares that said presumptions "are satisfactory, if uncontradicted" and that they "may be controverted by other evidence", it must follow that if they are contradicted or controverted they fade out and disappear from the case. As has been seen they do disappear when contradicted or controverted by the evidence of the party relying upon them, with the qualification stated in the Mar Shee case, but it is not correct to say that under the code section and the effect given to it by the court they vanish from the case as a matter of law when contradicted or controverted by the party against whom they are invoked. In such case their guiding and compelling effect is undermined and diminished or destroyed to the extent that they are controlled by the facts as found to exist.
[7] It is also contended by the defendants that while the legislature, under the Constitution, may, by the creation of a presumption, control procedure and the burden of proof, yet when it assumes to declare a presumption to be weighed against evidence of contrary facts the due process clause of the federal Constitution is violated. Supporting this contention the defendants cite Western Atl. R. Co. v. Henderson,
The laws of this state have never gone to the extent denounced by the Supreme Court in the Henderson case. It might be observed, however, that had the deceased in that case been killed while a passenger on and by reason of the operation of the train of the railroad company, the doctrine of res ipsa loquitur would undoubtedly have operated to establish a prima facie case of negligence. But even then the facts and circumstances of the killing would have to appear in evidence, and not merely the allegations of the complaint without evidence to support them. *555 [8] In this state the facts and circumstances of the killing must be in evidence. When in evidence they are aided by the statutory presumption as a species of evidence in behalf of the party relying upon it. When the presumption is invoked by a party and his evidence is not inconsistent therewith, it is in the case, provided, of course, the evidence sufficiently establishes a sphere or field within which the presumption can operate. Whether it does must, of course, be decided by the trial court as a question of law.
This brings us to the point of considering the effect of the testimony of the defendant Ireland. Conceding it to be contradictory to and inconsistent with the presumption, did it merely produce a conflict in the evidence, or did it overcome and dispel it?
[9] "In the present action, as already stated, Ireland, although examined by the plaintiff, was called under section 2055 of the Code of Civil Procedure. This section reads as follows: `A party to the record of any civil action or proceeding or a person for whose immediate benefit such action or proceeding is prosecuted or defended, or the directors, officers, superintendents or managing agent of any corporation which is a party to the record, may be examined by the adverse party as if under cross-examination, subject to the rules applicable to the examination of other witnesses. The party calling such adverse witness shall not be bound by his testimony, and the testimony given by such witness may be rebutted by the party calling him for such examination by other evidence. Such witness when so called, may be examined by his own counsel, but only as to the matters testified to on such examination.'
"It will be noted that this section provides in the first place that a party to the record `may be examined by the adverse party as if under cross-examination'. Furthermore, `the party calling such adverse witness shall not be bound by his testimony, and the testimony given by such witness may be rebutted by the party calling him for such examination by other evidence.'
"This section of the code was enacted in 1917. Prior to its enactment, a party might call an adverse party as a witness if he desired to do so, but he was obliged to call him as his own witness, and he was bound by his testimony in the same manner and to the same extent as he was by other witnesses called by him. This rule often worked a *556 hardship on litigants, and often prevented the true facts of the case from being brought out in the evidence. It was to temper the rigor of this rule that section 2055 of the Code of Civil Procedure was enacted. It is a statute remedial in character, and as such should receive a construction by the courts which will carry into effect and accomplish the intent and purpose of the legislature in enacting it. This intent was, as we read the section, to enable a party to an action to call an adverse party as a witness for the purpose of eliciting such facts as said witness may testify to which are favorable to the party calling him, without being bound by any adverse testimony which said witness may give. Only by such construction can the full remedial purposes of said legislation be effected. Not only so, but we think the express terms of said section clearly and plainly indicate that such was the purpose of the legislature in the enactment of said section. As before noted, the adverse party, when called as a witness, is examined by the party calling him `as if under cross-examination' and the party calling him `shall not be bound by his testimony'. It is difficult to conceive of language more direct and explicit. It can have but one meaning, in our opinion, and that is the meaning which we have above given to it. Such a witness does not stand in the same relation to the party calling him as does a witness who is called under ordinary conditions. He is more in the nature of a witness of the adverse party. A party is expressly forbidden to cross-examine his own witness [except by permission of the court as provided in section 2046 of the Code of Civil Procedure], but when he calls an adverse party as a witness he is expressly given the right to examine him under the rules of cross-examination. A party calling a witness under the ordinary rules of procedure is bound by the testimony of such witness, but by the express provisions of section 2055, Code of Civil Procedure, the very opposite rule prevails. Such a witness has none of the characteristics of a witness called by a party under the ordinary rules of procedure, but many of the characteristics of a witness called by the adverse party.
"This construction of section 2055, Code of Civil Procedure, is not new in this state. In Cioli v. Kenourgios,
"In the case of Grantham v. Ordway, supra, the plaintiff called as a witness one of the defendants, Ordway, under said section 2055 The action was one to recover damages for injuries sustained in an automobile accident, and was brought against said Ordway and the Pacific Acreage Company. The automobile was owned by the company, but was driven by its co-defendant Ordway at the time of the accident. Ordway testified that he was on business of his own at the time of the accident and that he was in no way acting for the company or transacting business for the company at the time. The trial court granted a nonsuit, and on appeal the judgment was reversed. A petition to have the case heard by the Supreme Court was denied. This case is on all fours with the present action. It was written by Chief Justice Waste, then presiding justice of said District Court of Appeal, and was concurred in by Justice Richards, then on said court, and Justice Nourse, acting temporarily as a justice of said court. As to the construction to be placed on section 2055, Code of Civil Procedure, the court said: `Furthermore, plaintiff is not bound by Ordway's testimony. "A party to the record of any civil action . . . may be examined by the adverse party as if under cross-examination, subject to the rules applicable to the examination of other witnesses. The party calling such adverse witness shall not be bound by his testimony, and the testimony given by such witness may be rebutted by the party calling him for such examination by other evidence."'
"That case is of further importance by reason of its ruling upon the question of whether the testimony of Ordway destroyed the presumption that the automobile was being used for the benefit of the Pacific Acreage Company by reason of its ownership thereof at the time of the accident. Upon this phase of that case the court said: `The automobile being admitted to belong to the defendant Pacific *558 Acreage Company, a presumption arose that it was used for its benefit and on its own account. That presumption was not destroyed as a matter of law by the testimony of the defendant Ordway. "Even though his explanation of the use of the car would absolve him if credited, the question of whether it should be credited was one of fact for the jury." (Citing authorities.)' On this same subject the court in that case also said: `Whenever under a given state of facts a presumption arises, such presumption is itself evidence. Courts and jurors are not bound to decide in conformity with the declaration of any number of witnesses, which do not produce conviction in their minds, against a less number, or against a presumption, or other evidence, satisfying their minds. (Code Civ. Proc., sec. 2061, subd. 2.) A presumption, even if disputable, will raise a conflict which is sufficient to support a finding made in accordance therewith, even though there be evidence to the contrary. Whether a presumption has been controverted is a question of fact. (Citing authorities.)'
"The effect of evidence given by an adverse party under section 2055 was commented on by this court in the recent case ofMarchetti v. Southern Pac. Co.,
"As opposed to the foregoing rule and the authorities cited in support thereof, the respondents rely principally upon the case of Figari v. Olcese,
"Neither do we think that in any of the following cases, cited by respondent, is there anything to be found which is contrary to the construction we have placed upon section 2055 of the Code of Civil Procedure: Brown v. Chevrolet Motor Co.,
[10] "Our conclusion, therefore, is that the testimony of a witness called under section 2055 of the Code of Civil Procedure is not, when weighing it against a presumption, to be considered, nor is it, really, evidence of the party calling such witness, and that the evidence thus produced does not dispel a presumption contrary thereto, but in favor of the party calling such adverse witness. This testimony is, of course, evidence in the case and may be considered in determining the issues of the case upon the trial or final hearing by the court, or if the case is before a jury, by the jury. When the action is before a jury, however, the duty of weighing this evidence is with the jury and not with the court upon a motion for a nonsuit or directed verdict.
[11] "Besides the testimony of Ireland has certain elements of weakness which render it of doubtful probative value, and which, we think, present additional reasons why it should not, as a matter of law, be held to be conclusive of the fact to which it relates. In the first place it is the testimony of an adverse party, and a jury may disregard the testimony of such a witness as against a presumption if the latter satisfies them. (Adams
v. Hopkins,
"Then again the testimony of Ireland related to a declaration of another person. Evidence of the declarations or oral admissions of a party are always received with caution. (Code Civ. Proc., sec. 2061, subd. 4.) The reason for this rule is that, `In most cases it is impossible, however honest the witness may be, for him to give the exact words in which the declaration or admission was made. Sometimes even the transposition of the words of a party may give a meaning entirely different from that which was intended to be conveyed. The slightest mistake or failure of recollection may totally alter the effect of the declaration or admission.' (10 Cal. Jur., p. 1081; Davis v.Davis,
"A third inherent weakness to be found in the testimony of Ireland is that it purports to give the statements or declarations of a deceased person. Regarding testimony of this character, this court said: `The evidence is of oral admissions against interest by a man whose lips are sealed in death. What, then, does the law say of such evidence (assuming now its admissibility)? The Code of Civil Procedure declares (sec. 2061, subd. 4) that "the evidence of oral admissions of a party ought to be received with caution by a jury". In Mattingly v.Pennie,
[12] "We are, therefore, of the opinion that the testimony of Ireland, as against the presumption that the deceased took ordinary care of his own concerns, was not sufficient as a matter of law to dispel said presumption, but, *561 on the other hand, merely tended to create a conflict with said presumption, which it was the right of the appellants to have passed upon by the jury in its final deliberations, and not by the court on a motion for a directed verdict.
[13] "The respondent, the Southern Pacific Company, contends that as between it and the appellants the testimony of Ireland must be regarded as evidence of the appellants and, therefore, under the rule enunciated in Mar Shee v. Maryland Assur.Corp., supra, it entirely overcame and dispelled the presumption of due care on the part of the deceased. Said respondent cites no authority to support this contention, and we think to assent to it would be to place an unauthorized limitation upon the remedial provisions of section 2055 of the Code of Civil Procedure.
"However, both the respondents contend that aside from the testimony of Ireland the evidence conclusively shows that the deceased was guilty of contributory negligence in not avoiding the danger which was apparent to him from the presence of the railroad track.
[14] "We have already set forth a general statement of facts in the first part of this opinion. There are minor details not included in the foregoing general statement, but we do not think that it will be necessary to set the evidence out more fully than has already been done. From the facts as they are contained in the record, it appears that the defendant Ireland was in sole control of the truck in which he and the deceased were riding just prior to and at the time of the collision; that the deceased was merely a guest of Ireland; and that the deceased was in no degree responsible for Ireland's driving his truck in front of the approaching train. Under such circumstances the negligence of Ireland cannot be imputed to the deceased. (Carpenter v.Atchison etc. Ry. Co.,
"The respondents, in support of their contention that the deceased was guilty of contributory negligence, cite the two cases of Heitman v. Pacific Elec. Ry. Co.,
"In the case of Barnett v. Atchison etc. Ry. Co., supra, five men were in an automobile, one of whom was driving said machine. They were all held to be guilty of contributory negligence. In that case, however, the automobile was being backed upon the railroad track by the driver at a speed of about five miles per hour. All of the men were perfectly familiar with the conditions surrounding the crossing and knew of the frequency of trains on the track. The bell of the engine was ringing continuously. Six or seven hundred feet from the crossing the engineer had blown the station whistle, and when the automobile was approximately fifteen feet from the track the engineer sounded four sharp warning whistles. While they were thus approaching the crossing the driver was looking to the left and to the rear of his machine. The three men in the rear seat of the machine had their heads down and were examining *564 some minnows in a sack on the floor of the machine. None of them either looked or listened for an approaching train before their machine was driven onto the railroad track, or took any other precaution whatever to observe the danger into which they were being driven. Parks, who was not a party to said action, and who was on the front seat with the driver, observed the train and called to his companions to jump. He jumped free of the machine and was not injured. The three men in the rear seat and the driver were seriously injured and three of them died as a result of their injuries. No mention of the rule applicable to guests is to be found in that entire case. The four men injured were treated as if they were equally guilty of negligence. The uncontradicted evidence shows that none of these made any attempt whatever to ascertain the presence of the train upon the track or to escape from the danger into which they were heedlessly running. . . .
"Neither of these cases, in our opinion, is applicable to the facts in the present action. The facts before us do not, we think, point unerringly to the negligence of the deceased. . . . Under these circumstances we think it was for the jury to say as a matter of fact, and not for the court to hold as a matter of law, whether the deceased was guilty of contributory negligence."
The judgment is reversed.
Preston, J., Curtis, J., Waste, C.J., and Langdon, J., concurred.
Dissenting Opinion
I concur in the judgment of reversal herein upon the ground that the trial court in directing a verdict for the defendant did so upon a state of the evidence which was insufficient to justify such order, if, as the trial court instructed the jury, the testimony of the witness Ireland was to be disregarded by it in returning such directed verdict. In stating the evidence which furnished the ground upon which the order for a directed verdict was based, the trial court expressly stated to the jury that it should "disregard entirely the question of what Ireland may have said to Smellie". The error which the trial court thus committed in directing the jury to disregard Ireland's testimony in returning their directed verdict could not be cured by the succeeding error *565 which the jury committed in following such instruction and in returning a verdict upon other evidence which was insufficient to establish the contributory negligence of the deceased as a matter of law.
I dissent, however, from that portion of the main opinion holding that the presumption that the deceased took ordinary care of his own concerns persisted so far as to constitute a conflict in evidence, notwithstanding the direct testimony of the witness Ireland to a fact which controverted that presumption. It seems to me indisputable as a matter of law, supported by innumerable authorities, that if the witness Ireland had been called by the plaintiffs on their own account and as their own witness, and not under the provisions of section 2055 of the Code of Civil Procedure; and if as such witness he had given the testimony which he did give with respect to the words and acts of the deceased immediately prior to the casualty in which he lost his life, the presumption above referred to would have disappeared from the case. It also seems to me that the same result would follow upon the introduction of the same testimony by either or any of the parties to the action if, at the close of the case, such evidence stood in the record unrebutted and uncontradicted and if the witness giving the same had been unimpeached. This conclusion, as I shall show, is supported by a long course of well-reasoned decisions which ought not to be, as it is in the main opinion, disregarded and overthrown. It is, however, claimed in the main opinion that the foregoing rule, otherwise well founded, does not apply to cases wherein the plaintiff calls a witness under the provisions of section 2055 of the Code of Civil Procedure, and wherein such witness when so called testifies to facts which, had he been called and testified on behalf of the plaintiffs otherwise than under the terms of said section, would have sufficed to dispel the presumption. The basis of this claim as set forth in the main opinion is furnished by the clause in section 2055 of the Code of Civil Procedure, which states that, "The party calling such adverse witness shall not be bound by his testimony, and the testimony given by such witness may be rebutted by the party calling him for such examination or by other evidence." The parties to a civil action are bound by the direct evidence of the witnesses therein, as to which they *566
offer no impeachment of such witnesses, and the testimony of which they neither seek to rebut nor controvert. This must be so; otherwise there could never be any such thing as a directed verdict in favor of either party, or a nonsuit against the plaintiff in any case in respect to which a disputable presumption was claimed to exist in favor of or against either or any of the parties thereto. Section 1844 of the Code of Civil Procedure, states: "The testimony of one witness who is entitled to full credit is sufficient for proof of any fact except perjury or treason." Section 1959 of the Code of Civil Procedure, defines a presumption to be a deduction which the law expressly directs to be made from particular facts; and while section 1957 classes presumptions as a form of indirect evidence, section
With this background of sound precedent I pass without further comment those cases beginning with People v. Milner,
I conclude that a consideration of the proper meaning to be given to the terms of section 2055 of the Code of Civil Procedure, as that meaning was rightly interpreted in the case ofFigari v. Olcese,
The former decision of this court, rendered by Mr. Justice Seawell in department, should, in my opinion, be adopted and should stand as the main opinion of this court in its final decision of this cause.
Dissenting Opinion
I am in accord with the statement of the law as herein made by Mr. Justice Richards as to the weight and sufficiency of presumptions as evidence when standing in contradiction of direct oral testimony. Of course, it was not intended by the legislature that an adversary witness called to the stand was, ipso facto, placed under the ban of suspicion. An adversary witness may be examined as a witness on cross-examination and such parts of his testimony as are not acceptable to the party calling him may be impeached in all the ways provided by law for the impeachment of a hostile witness. His testimony, however, stands as evidence in the case. Those portions which are not inherently improbable — in case the character of the witness is not impeached — may not be arbitrarily disregarded, but stand as evidence sufficient to overcome a presumption of the kind appearing in the instant case. The fact that the adversary party is called in no manner places him in the class of impeached witnesses, and unless he is impeached or his testimony is rebutted by the party calling him his testimony is to have the same binding effect as that of any other witness testifying in the case. *569
I wish here to add my adherence to the first and original opinion rendered in this cause and which was, upon rehearing, again adopted as the opinion of the court. The facts as they were therein claimed to be are fully and correctly set forth. The law as therein declared, founded upon the wisdom and experience of ages, has the approval and sanction of state and federal courts wherever the subject of the weight and effect of presumptions has been drawn to judicial attention. The authorities are too multitudinous to attempt citation.
Rehearing denied.
Seawell, J., and Richards, J., dissented.