Opinion
No. 23711
Decided April 12, 1933.
Evidence — Testimony of witness at former trial, admissible, when — Section 11496, General Code — Proof necessary of unavailability of witness — "Beyond jurisdiction of court" construed as beyond reach of process — Erroneously admitted testimony prejudicial, although cumulative — Negligence — Directed verdict — No inference that plaintiff exercising due care for own safety.
1. Section 11496, General Code, prescribes the conditions under which the testimony of a witness given at a former trial may be introduced in evidence. In order, however, to admit such testimony, a proper showing of the unavailability of the witness who gave the testimony sought to be produced in the subsequent action must be shown, and the burden of satisfying the court of the validity of the excuse for non-production lies upon the party seeking to introduce the former testimony.
2. The words "beyond the jurisdiction of the court," in Section 11496, General Code, are to be construed as meaning beyond the reach of the process of the court.
3. When testimony upon a material point is erroneously admitted, the fact that such testimony was in some degree cumulative does not relieve such admission of its prejudicial effect.
4. In an action for damages for personal injuries, where plaintiff's own testimony will warrant no inference but that his own want of due care contributed proximately to causing the injury, there can be no recovery, and a motion directing the jury to return a verdict for the defendant should be sustained.
ERROR to the Court of Appeals of Lucas county.
This is a proceeding in error, seeking to reverse the Court of Appeals of Lucas county. The original case was begun in the court of common pleas of that county by Melburn D. Stevens, being an action to recover for personal injuries sustained while he was walking on the right of way of the New York Central Railroad Company.
Stevens was an employe of the Willys-Overland Company at its plant in Toledo. On his way to work, on January 11, 1929, he had come to the so-called Castle Boulevard Gate, and crossed the Michigan Central Railroad tracks and the Lake Shore or New York Central Railroad tracks, and then turned to his left and walked toward the Willys-Overland plant, on the railroad right of way between two switch tracks known as lead track No. 1 and lead track No. 2. This way of reaching the Overland plant seems to have been used by other men, and had been so used for some time. The accident occurred about 6:30 in the morning. It had been raining a little that morning. Stevens says he was walking along and heard an engine on his left, and he took one small step to the right. In response to the question as to whether or not he heard the engine on his right, he answered: "Well, I heard it, but I was thinking only of the one to the left."
The record shows that he either walked into the engine, or it struck him as it was slowly backing.
Additional testimony appears in the record as to the nature and extent of the injury, the location of the tracks, the atmospheric conditions, the electric lights displayed upon the Overland Company's buildings, as well as other lights.
Stevens claimed to have sustained a fracture of his right leg, and that he was confined to the hospital for some time.
The record also contains evidence with respect to whether or not there was a light on the rear of the engine which is claimed to have struck Stevens. The giving of signals, by the ringing of the bell, is claimed by the railroad company; Stevens on the other hand claimed there were no lights, no bells, no warning.
The railroad company's men testified the engine was standing still, while Stevens claims the engine was in motion at the time of the accident.
The matter was submitted to a jury and a verdict was rendered in favor of Stevens for $1,500. Motion for new trial was overruled, and the case was taken to the Court of Appeals, which court reversed the common pleas court on the weight of the evidence and remanded the case for a new trial.
Before the case came on for hearing the second time, Stevens died from other causes than the accident, and Orr M. Stevens was appointed administrator of his estate, and the cause then proceeded.
Upon the second trial, the testimony of Ora Whitcomb and his wife, Agnes Whitcomb, two witnesses who had testified in his first trial, was read to the jury from the bill of exceptions of the first trial. These two witnesses lived at or near Wauseon, in Fulton county, a county contiguous to Lucas county, where the case was tried. The railroad company claimed that compulsory process would run from Lucas county to Fulton county, requiring the attendance of these two witnesses; that there was no legal reason why their testimony taken at the former trial should be read to the jury. The trial court held against the contention of the railroad company, and overruled its objection, to which the railroad company excepted.
In the second trial, at the conclusion of the plaintiff's evidence, a motion for directed verdict was made by the railroad company, which motion was renewed at the close of all the testimony.
In ruling upon this motion, the court said:
"At the close of plaintiff's case counsel for the defendant requested the court to direct the jury to return a verdict in favor of the defendant. That motion was renewed at the close of all of the evidence, and has been fully argued by counsel on both sides. In the judgment of the Court, this motion should be granted for two reasons: In the first place, the decedent, Mr. Stevens, was injured upon the property of the defendant, and he was at best a bare licensee, and in the opinion of the Court, without undertaking to make any broader statement of it than just this, the evidence does not show, in the judgment of this Court, that the defendant violated any duty that it owed to Mr. Stevens as a bare licensee. He was there for his benefit, and he took the license subject to all of the dangers attendant upon the acceptance of that license which he did accept for his benefit, and his benefit only, and for that reason, if the matter was originally and for the first time before this Court, the case would be taken from the jury. But in addition to that, it seems to this Court to be very clearly established that Mr. Stevens was guilty of contributory negligence. He had in front of him a perfectly safe way to go, even pursuing the course that he was taking, without getting on the tracks, within those yards. In connection with the cross-examination of one of the witnesses for the plaintiff, the Exhibit No. 2 was introduced, and if that exhibit shows anything, it shows clearly that Mr. Stevens need not have gotten on the track, or near enough to the track to be injured by this railroad engine. He did not pursue that perfectly straight course, but did get into a position of possible danger, a position that he knew might be fraught with dangers; so, if the case was originally, and for the first time presented to this Court, the Court would feel it was its duty to take the case from the jury. The case was tried in the lifetime of Mr. Stevens, and it was taken to the Court of Appeals. It is perfectly clear that the evidence of how that unfortunate occurrence did occur was presented to the Court of Appeals on Mr. Stevens' testimony. Mr. Stevens has since died, and it is now presented to this Court and jury upon the record which was presented to the Court of Appeals. In that record, evidence sufficient to show that men were accustomed to go down these tracks, as Mr. Stevens did, thereby indicating that the Court of Appeals found that he held the position of a licensee. There was in that record some evidence contradictory to Mr. Stevens' evidence. Now, on the review of that record the Court of Appeals found that the evidence was sufficient and should be submitted to the jury, but did find that the verdict of the jury was not sustained by sufficient evidence, and was contrary to the manifest weight of evidence. Now I think on the same record that becomes the law of the case, or must govern this Court whatever personal view the Court may take of it. Therefore, on the main issue as to whether or not there was enough to go to the jury, to permit the jury to find whether or not he was a licensee, and as to whether or not as to the obligation of the Railroad Company in the matter of looking after the safety of a licensee under those circumstances, the Court of Appeals has passed on that evidence just in the same form on that issue of the case as it is presented here. There is some additional evidence, the Court will assume for the purposes of this opinion, as to the lights, the character of the surroundings, and perhaps the movement of the trains, etc., making a different situation with regard to that, a different case so far as the jury is concerned, than perhaps was made in the record that went to the Court of Appeals. But all that, as I see it, deals with the question as to whether the truth of Mr. Stevens' delineation of how the occurrence took place, and is entitled to be weighed by the jury, and it may be urged that it should have greater weight with the jury than the record that was before the Court of Appeals; but that, it seems to me, all deals with the question, largely with the question, if not wholly, as to whether or not Mr. Stevens was or was not guilty of contributory negligence. I think Mr. Stevens' own testimony shows that he was guilty of contributory negligence, but that question was passed on by the Court of Appeals, and that [court] said that under that testimony, his testimony, it should go to the jury. In view, therefore, of the holding of the Court of Appeals on what I see on the main points of the case, and the same record, I feel bound by that opinion. I hope counsel will not feel that is a lack of courage, but if I had a right to do so, I would take the case from the jury."
This motion was overruled, to which the railroad company excepted.
At the second trial the railroad company submitted three interrogatories which it requested should be answered by the jury, if the jury reached a general verdict. A general verdict was rendered for $1,500 for the plaintiff, and the interrogatories, with their answers, appear of record as follows:
"1. Was the defendant negligent? If so, state of what that negligence consisted.
"Answer. 1. Yes. 2. They did not use reasonable care to avoid injuring him, after discovering him to be in a position of peril.
"2. Do you find that Stevens stepped aside from the path where he was walking onto the ties on the track on his right near the engine which he heard on that track? If so, was he negligent in doing so? Answer: No.
"3. Was there any wilful or wanton act on the part of the defendant which resulted in injury to the plaintiff? If so, what was that act? Answer: No."
The railroad company thereupon filed a motion for judgment notwithstanding the verdict, and for judgment on the special findings as inconsistent with the general verdict, and also a motion to set aside the verdict and for a new trial. The court of common pleas sustained the first two motions and entered judgment for the defendant, and thereupon overruled the motion for a new trial.
Orr M. Stevens as administrator of the estate of Milburn Stevens, deceased, prosecuted error to the Court of Appeals, and the railroad company filed a cross-petition in error for relief if its judgment should be set aside. The Court of Appeals held that the judgment should not have been entered, either on the motion notwithstanding the verdict or on the special findings, and the following appears in the journal entry of that court:
"It is therefore considered, ordered and adjudged by this court that the judgment of the said court of common pleas be, and the same is, hereby set aside, reversed, and held for naught, and that the plaintiff-in-error be restored to all things which he has lost by reason of said judgment; that the said action be, and it is hereby remanded to said court of common pleas of Lucas county, Ohio, for further proceedings according to law * * *."
To reverse this judgment of the Court of Appeals, the railroad company now prosecutes error in this court, and asks that the judgment of the court of common pleas be affirmed.
Messrs. Doyle Lewis, Mr. Robert Newbegin and Mr. Wm. C. Moore, for plaintiff in error.
Messrs. Fritsche Winchester and Mr. John Ruffalo, for defendant in error.
Did the court of common pleas err in the second trial of this case in allowing the reading from the record of the former trial the testimony of the witnesses Ora Whitcomb and Agnes Whitcomb, over the objection and exception of the railroad company?
Authority for the reading of the testimony of a witness given at a former trial is found in Section 11496, General Code, which reads, in part, as follows:
"When a party or witness, after testifying orally, dies, is beyond the jurisdiction of the court, can not be found after diligent search, or is insane, or, through any physical or mental infirmity, is unable to testify, or has been summoned, but appears to have been kept away by the adverse party, if the evidence given by such party or witness is incorporated into a bill of exceptions, in the case wherein such evidence was given, as being all the evidence given by such party or witness, and such bill has been duly signed by the judge or court before whom such evidence was given, the evidence so incorporated into such bill of exceptions, may be read in evidence by either party on a further trial of the case." Section 11506, General Code, makes provision as follows:
"A witness shall not be compelled to go out of the county where he resides, or is subpoenaed, except to an adjoining county, to testify in a civil action, except where the case has been removed from the county in which such witness resides by change of venue."
The position of the railroad company is that if a witness is within reach of the process of the court, so that his attendance can be compelled, then there is no right to read his testimony merely because he is not within the county of the court trying the case, even though such testimony is a part of the bill of exceptions of a former trial between the same parties; that the record fails to show any ground, within Section 11496, or otherwise, why such testimony given at a former trial should be read, and no reason whatsoever why the witness in question should not have been produced at the second trial.
An elaborate discussion of the law with respect to the reading of the testimony of witnesses at a former trial will be found in Toledo Traction Co. v. Cameron (C.C.A.), 137 F., 48. The growth of the principle from the common law into statutory form is traced, and in that case it was held that the Ohio statute, "which authorizes the admission in evidence of the testimony given by a witness on a former trial of the same case when the witness is dead or beyond the jurisdiction of the court, is in conformity with the rule recognized at common law, which permits the use of such evidence generally where it is impossible to obtain a viva voce examination of the witness."
The matter is expressed in 17 Ohio Jurisprudence, 591, as follows:
"In order, however, to admit evidence given at a former trial, a proper showing of the unavailability of the witness who gave the testimony sought to be proved in the subsequent action, must be shown."
10 Ruling Case Law, 966, Section 143: "The mere fact that testimony has been given in the course of a former proceeding between the parties to a case on trial is no ground for admitting it in evidence. The witness must be produced under such circumstances, just as much as one testifying de novo."
Wigmore on Evidence, vol. 3 (2d. Ed.), 144, Section 1415: "No one has ever doubted that the former testimony of a witness cannot be used if the witness is still available for the purpose of testifying at the present trial. * * * So also if the witness is within reach of the court-process and is not shown to be unavailable by reason of illness or the like, the deposition is inadmissible."
Jones on Evidence, vol. 3 (2d Ed.), 2175: "Parol evidence of the testimony of a witness on the former trial of the same case is not admissible where the parties have relied upon his mere promise to attend, and have made no effort to compel his attendance, although he was within the jurisdiction of the court. As a general proposition the evidence given by a witness at a former trial of the case is not admissible on the second trial when such witness, though absent, might have been produced on the trial. Temporary absence, when there has been no effort to subpoena the witness, is clearly insufficient."
See, also, Hansen-Rynning, Admr., v. Oregon-Washington Rd. Navigation Co., 105 Or. 67, 209 P. 462; Southern Ry. in Kentucky v. Owen, 164 Ky. 571, 176 S.W. 25.
We hold that the words "beyond the jurisdiction of the court," in Section 11496, General Code, are to be construed as meaning beyond the reach of the process of the court. It does not appear that these witnesses could not have been subpoenaed from an adjoining county, or compelled to appear. The reading of their testimony was therefore error.
It is contended, however, by defendant in error, that the testimony was purely cumulative, and that its admission, therefore, was not prejudicial to the railroad company.
On the other hand, the railroad company claims that the testimony which was read referred to some of the chief issues of the case and was in conflict with the evidence of other witnesses, some of which was different from that of the first trial, so that further cross-examination of the Whitcombs was necessary for the making of its case.
The nature and extent of the injuries of Stevens was one of these issues; Stevens having lived over a year after the first trial, dying from other causes than the injury involved in the instant case. Therefore the railroad company claims that the testimony of the Whitcombs was material; Mrs. Whitcomb having testified:
"A. Why, he don't get around very good; he seems to be lame, and can't use himself like he did before; he can't get around and near as limber as he used to be before the accident."
"Q. And what, if anything, did you notice with regard to his nervous system? A. Why, he is lots more nervous now. Well, he practically was not nervous at all before this happened, but this has just wrecked him."
Also on the former trial Ora Whitcomb gave the following testimony:
"Q. Did you observe, then, what was his condition? A. I took care of him; he was terrible bad; of course I didn't know until I found out myself; I had to help him to bed. * * *
"Q. What have you observed with regard to his condition and the manner in which he walks and carries himself as compared with what you saw before he was hurt? A. I can tell a big difference in him, an awful big difference in Mr. Stevens.
"Q. And what, if anything, have you observed with regard to his nervous condition? A. He is much more nervous; he was not nervous like this before."
Ora Whitcomb also testified with respect to the tracks and the cement driveway, the location of the buildings and surrounding conditions.
The railroad company claims it should have had the benefit of cross-examination of these two witnesses, in the light of the evidence offered at the second trial.
The right of cross-examination and the testing of the memory of the witness and the personal appearance of the witness before the court and jury are all of great value to either party in the trial of a case. Both of these witnesses were within reach of the process of the trial court. The trial was in Lucas county, and the witnesses resided in the adjoining county of Fulton. Section 11506, General Code, authorizes process to compel their attendance.
The burden of showing a valid excuse for the non-production of the absent witnesses lies upon the party seeking to introduce their former testimony. No showing is made that by diligence their attendance could not have been procured.
Although the evidence furnished by the testimony of the two witnesses, which the trial court allowed to be read from the record of the first trial, may have been in some degree cumulative, we cannot say that its erroneous admission was not prejudicial to the defendant. Its admission, therefore, was material, even vital, to the defendant; and hence prejudicial error on the part of the court.
Another question presented by this record is whether or not Stevens was guilty of contributory negligence which prevents his recovery.
This case was before this court upon a previous occasion, to wit, upon motion to certify after the Court of Appeals had set aside the verdict after the first trial, and remanded for a new trial. The reversal by the Court of Appeals was based upon the weight of the evidence, and, under Rule XIX, this court was required to affirm and remand for further proceedings, so that the question whether or not Stevens was guilty of negligence which proximately contributed to his injury was not considered by this court.
The majority of the court are of opinion that the record discloses that Stevens was guilty of such negligence, proximately contributing to his injury, as a matter of law, and that the court of common pleas should have directed a verdict in favor of the railroad company at the close of the plaintiff's case.
The facts surrounding the accident disclose that Stevens at best was a mere licensee, and the railroad company owed him at most the duty to refrain from willfully or wantonly injuring him and to exercise ordinary care after discovering him in a position of peril.
The accident happened in a railroad yard at about 6:30 in the morning, in the month of January, while Stevens was walking between the two switch tracks, going to his work in the Willys-Overland factory. His testimony in direct examination is as follows:
"A. Why, I went on the tracks — after I would get past where the driveway was made around for them to drive into the buildings, I heard a train a-coming, and I was walking along and there was a switch there where there was one track went to the left and one to the right. Now, you understand me, you can hear me plain enough, can you? — and I was between the tracks in the path where we all traveled and went on."
"Q. Tell it to the jury. You don't have to tell it to Mr. Newbegin. A. And I heard a train on my left I heard an engine, and I was walking between the tracks and I could see nothing, there was no lights, no lights on the engine and it was very dark at 6:30 — this was just about 6:30 and it was very dark — and I was walking along and I heard this engine to my left, and I took one small step, short step, to my right, to be sure — I never knew of an engine coming on this other track, and I stepped, my foot close to the rail, and this engine — I took probably two steps and this engine hi me and I was unconscious."
In cross-examination Stevens testified:
"Q. Now, when you came down between those tracks on the morning when you were injured, I understood you to say that you heard the engine on the track to your left? A. Yes, sir.
"Q. It was a good level place to walk there, was it? A. Yes, sir.
"Q. And you said you didn't hear the engine on your right? A. Well, I heard it, but I was thinking only of the one to the left.
"Q. You heard the engine on your right, too? A. I must have heard it, yes.
"Q. But you, notwithstanding hearing that engine, you continued to walk right along on the ties of the track, didn't you? A. No; I was not walking on the ties * * *."
The distance between the rails of lead track No. 1 and lead track No. 2 is disclosed by the following testimony from the record, being that of Roland Nagle, the civil engineer who testified to the blueprint attached to the record:
"Q. Let us qualify that a little; the distance between the east rail of No. 2 switch lead and the west rail of No. 1 switch lead, in other words, the distance between the tracks? A. From here to here, is that the idea; from this rail to this rail, the two inside rails?
"Q. Yes? A. I can't tell you the exact distance, but the approximate distance is thirteen feet less 4.7.
"Q. Less four feet and seven-tenths? A. 4.7 feet. Yes.
"Q. That would be approximately nine feet, or a little over eight feet? A. 8.3."
The clearance between the two engines upon No. 1 and No. 2 lead tracks is shown by the testimony of Alfred F. Stowe, the fireman on engine No. 276:
"Q. Of course, that is true, but you could almost reach over and touch the other cab, couldn't you? A. Hardly.
"Q. How much clearance is there between the cabs? A. I don't know the exact footage between two cabs, but they was quite a distance.
"Q. Three feet? A. More than that."
Stevens heard the engine which he struck, or which he says struck him, but he neglected to pay attention to what he heard. "I was thinking only of the one to the left." It thus appears that he heard the engine into which he walked, or which struck him when it was slowly backing. In either event, he heard the engine which caused his injury. In his own words:
"I was thinking only of the one to the left * * *."
"Q. You heard the engine on your right, too? A. I must have heard it, yes."
It is apparent that he left a place of safety and stepped into the zone of danger. We cannot escape the conclusion that this action on the part of Stevens constituted negligence which proximately contributed to his injury and prevents his recovery. The facts, as shown by the plaintiff's own testimony as to how the accident happened, will warrant no inference, in our judgment, that the plaintiff at the time of the injury was exercising due care for his own safety.
The court of common pleas should have directed a verdict for the railroad company, and the Court of Appeals should have so ordered.
Proceeding to enter the judgment which the Court of Appeals should have entered, the judgment of the Court of Appeals is reversed and final judgment is entered for the plaintiff in error.
Judgment of the Court of Appeals reversed and final judgment for the plaintiff in error.
ALLEN, STEPHENSON, JONES and MATTHIAS, JJ., concur.
WEYGANDT, C.J., concurs in the principles of law enunciated in each paragraph of the syllabus, but dissents from the judgment of reversal for the reason that these principles are not controlling under the circumstances of this case.
KINKADE, J., not participating.