60 A. 748 | N.H. | 1905
The only exceptions relied upon are those arising from the refusal of the presiding justice to permit further examination of the witness Wilson, the motorman of the car which came in collision with the plaintiff's car, causing the injury. A material question at the trial was whether Wilson was notified, or knew, that the plaintiff's car was in front of his car on the single track. Wilson testified that prior to July 16 he had always been notified when the plaintiff's car was out, that he was not notified on the day of the accident, and that he overheard a fellow-employee state in the presence of the car starter that the workmen's car would not be out that night. As a part of their case, the defendants introduced a written statement purporting to have been made and signed by Wilson the day after the accident. According to this statement, Wilson saw the workmen's car go out the night of the accident and explained his conduct upon a different theory from that indicated by his testimony.
It is competent for a party to impeach the testimony of a witness by proof of his declarations out of court which are inconsistent with his testimony as to material matters. Cooper v. Hopkins,
Although the documentary evidence in this case was an unsworn statement purporting to be signed by the witness, its use is controlled by the procedure governing the use of a deposition of the witness for a like purpose. The proper practice in such case is familiar, and was discussed at length in Haines v. Insurance Co.,
In this case, the knowledge of Wilson was material. The presentation of the written statement to the jury may have aided his recollection; and the defendants had the right to have the jury know whether the witness insisted on his failure to remember, or in the face of their evidence denied the making of the statement, or admitted its falsity or that his testimony was erroneous, or explained the discrepancy in some other way. Upon the authority of these cases and the elementary rule forbidding parol proof of written documents, it is clear that the suggestion, that the proper time to inquire of the witness Wilson with reference to the contents of the written statement was before it was regularly put in evidence, cannot be sustained. Denial of opportunity to examine the witness as to the written statement because undertaken too late was therefore, as matter of law, erroneous. When Wilson was first called, he refused to admit that he signed or gave the written statement. The contents of the paper, therefore, could not then have been properly communicated to the jury. The paper was not in fact read until identified by the defendants' witness. Although counsel may have inquired of Wilson as to the substance of the facts in the statement, and may have been improperly permitted to ask him if he had stated the facts as they were stated in the paper, it is obvious they could not have examined him as to any discrepancies between the statement evidenced by the writing and those made by him in his testimony, or called upon him for any explanation thereof. The suggestion that *254 counsel had "inquired of the witness fully concerning this statement, and the witness testified fully concerning it," if supported by the record, does not meet the point to which the inquiry was directed the explanation of the apparent conflict between the two statements, which could not be called for until both were before the jury. An opportunity for inquiry upon this point was not afforded by Wilson's prior failure to remember as to the facts or the giving of the statement. No reason is perceived why justice would not have been promoted by further inquiry of the witness, or why such inquiry should not have been allowed.
Exception sustained: verdict set aside.
BINGHAM, J., did not sit: the others concurred.