Washington, Alexandria, & Mount Vernon Railway Co. v. Fincham, 40 App. D.C. 412

Washington, Alexandria, & Mount Vernon Railway Co. v. Fincham

40 App. D.C. 412 | D.C. Cir. | 1913

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. The first error assigned relates to the introduction of evidence. After offering in evidence certain photographs of the south end of the bridge and the road and tracks, poles, etc., which were not objected to, plaintiff offered another, showing the wagon drawn by one of the horses hitched to it at the time of the accident, and another; the same wagon after repair. It showed two men on the seat and plaintiff standing up in the place testified to by him. Defendant objected “on the ground that it was supposed to have been taken eighteen months after the accident, and after the vehicle had been repaired, and with different horses attached.” The photograph was irrelevant. It tended to shed no light upon any issue in the case, and should not have been admitted. The error, however, was an utterly harmless one. Looking at the picture might possibly have relieved the monotony of the trial, but it could have had no influence on the verdict.

2. The second assignment of error based on exception to the refusal to exclude certain evidence presents a different question. Plaintiff had testified to having good sight and hearing-before the accident; and to the serious impairment of both thereafter, continuing to the time of trial. Other witnesses familiar with him before and after corroborated him. There was no contradiction. The accident occurred June 10, 1910; the verdict was returned May 12, 1912. An eye, ear, and throat specialist was offered by the plaintiff, who testified that he examined plaintiff March 27, 1911, and found his vision reduced about one fifth of the normal vision; his hearing very much reduced in the left ear; not likely hearing will get better; *419if a man received a blow over the eye, and remained unconscious for five or six days, and immediately thereafter realized that his sight and hearing were affected, and it was apparent to others that they were affected, witness would say that the accident was the cause of the defects. (There had been evidence to these facts.) Witness was then asked how the range of vision is tested by a perimeter. He explained that the patient is seated with his head in a rest, and fixes his vision on the center of a disk on a line with his eyes. This a movable apparatus divided into degrees. In moving this up, “if he sees it here and it is marked 20, then we indicate the fact on the chart 20 degrees.” If he sees at 40 we indicate that on the chart. This can then be revolved in a horizontal direction, and in that way we map out all the directions, horizontal, oblique, etc. Cross-examined by defendant, witness was asked how it is ascertained if the patient is telling the truth about it ? Witness replied: “If a man understood this instrument, and knew its use, and had seen it before, he could misinform me, for I must depend to a considerable extent on his statement. He might misinform me if he was acquainted with its use, but patients seldom see these things. Of course, if he had access to and practice with an instrument he could very readily misinform me.” Defendant then moved to exclude the evidence “because it is necessarily hearsay evidence obtained for the purpose of producing testimony before the court.”

The objection assumes that this examination was made to elicit evidence for use in the trial merely,—an assumption for which there is no foundation in the record. The examination occurred more than a year before the trial. Had it not been for treatment of the ailment, the fact could and should have been elicited when the witness was under cross-examination. There was no error in refusing to exclude the evidence. Northern P. R. Co. v. Urlin, 158 U. S. 271-275, 39 L. ed. 977-981, 15 Sup. Ct. Rep. 840. See also Fleming v. Springfield, 154 Mass. 520-522, 26 Am. St. Rep. 268, 28 N. E. 910.

3. There was no error in refusing to direct a verdict for defendant at the close of the evidence. The court charged the *420jury that there was no evidence of actionable negligence on the part of the defendant prior to the time that plaintiff went or was driven on the track; and that the only negligence contended for by plaintiff on the part of the defendant is in failing to use reasonable care in stopping the car after the motorman saw the team upon the track; and question as to the headlight or the speed of the car had been eliminated. There was a conflict in the evidence on the issue, relating to the distance of the car when the wagon reached the track, and whether the car could have been stopped in time, under the circumstances, to prevent the collision, by the exercise of ordinary care. It cannot be said that but one reasonable conclusion could be arrived at from the evidence, and that conclusion in favor of the defendant. Under no other conditions could the court take the case from the jury. Moreover, the jury had been permitted to visit the scene of the accident and view the surroundings, which had remained unchanged.

4. The first special instruction given for the plaintiff submitted this issue fairly to the jury, and the exception to it was not well taken.

5. The defendant’s sixth special instruction reads as follows: “The court instructs the jury that if they believe from the evidence that the plaintiff’s injury was caused by the concurrent negligence of the motorman and either the plaintiff or Smith, due to each failing to keep a proper lookout or otherwise, they must find for the defendant, even though they may think the motorman was more to blame than either Smith or Fincham

The court modified this instruction by striking out the words which have been italicized, for convenience, in copying it; and to this modification exception was taken; no special ground of objection being stated. There was no error in the modification. There was no question of comparative negligence. The court had given an instruction for the defendant to the effect that there was no actionable negligence on the part of the defendant prior to the time that plaintiff went or was driven upon the track. Again, in stating the issue it was said: “It eliminates every other question of negligence except that of the *421defendant, after its motorman had seen the position that plaintiff was in. If he was negligent in stopping the car, if he had time, then there was negligence.” It was added that the defendant owed no duty to foresee his negligence in going upon the track, nor until the motorman saw that the wagon was being actually driven upon the tracks at a point -where collision could not be avoided, unless the car could be stopped; or too late to stop the car, or the motorman used all the means at hand to stop but failed, the verdict should be for the defendant. Also the jury were charged that if the injury was caused by the concurrent negligence of the motorman and the plaintiff or his driver, due to each failing to keep a proper lookout, or otherwise, the verdict must be for the defendant.

6. The last assignment of error is on the refusal of the defendant’s seventh special instruction:

“The court instructs the jury that preponderating proof that the defendant was negligent in trying to stop its car after discovering the plaintiff’s peril, and that such negligence contributed essentially to the injury of the plaintiff at the time, place, and manner therein set forth, are essential to the plaintiff’s right to recover, and if the evidence fails to preponderate on either of these points in favor of the plaintiff, or is equally balanced on either of these points, or preponderates in favor of the defendant on either of these points, then their verdict must be in favor of the defendant.”

Instead, the court gave the following:

“The court instructs the jury that burden of proof is upon the plaintiff to establish that the defendant was negligent in trying to stop its car after discovering the plaintiff’s peril, and that such negligence contributed essentially to the injury of the plaintiff at the time, place, and manner set forth in the plaintiff’s declaration, and if the evidence fails to sustain such burden of proof on either of these points in favor of the plaintiff, or is equally balanced on either of these points, or preponderates in favor of the defendant on either of these points, then their verdict must.be in favor of the defendant.”

We perceive no substantial difference in meaning between the *422two instructions. But. all possible misunderstanding by the jury was prevented by the language of the general charge. Therein the jury were charged that if plaintiff negligently drove on the tracks, and the motorman negligently ran into him, and the negligence of each was concurrent, then the plaintiff could not recover, “because the burden is upon the plaintiff to establish his case by a preponderance of the evidence.” The instruction before given had told them that if the evidence was equally balanced, the verdict must be for the defendant.

We are satisfied that the evidence was such as to require its submission to the jury, and that the charge of the court fairly embodied the governing principles of the law that have been declared by this court in like cases. See Washington R. & Electric Co. v. Cullember, 39 App. D. C. 316, and cases therein cited.

The judgment is affirmed with costs. ' Affirmed.