Dubs Ex Rel. Dubs v. Northern Pacific Railway Co.

*118 Pee Curiam. This is an appeal from a judgment in favor of the plaintiff and from an order denying the defendant’s motion for a judgment notwithstanding the verdict for a new trial. The action is one to recover damages for personal injuries sustained by the plain *119 tiff on July 5, 1912, through being run over by one of the defendant’s locomotives near the village of New Leipzig. The plaintiff at that time was a boy about nine years of age, and while engaged in herding cattle on the day in question was playing or resting upon the railroad track same distance west of the village. He had a dog for a companion and as the train approached him from the east he was apparently unaware of its presence. The engineer saw the dog from a distance of about 400 feet, but he testifies that he did not see the boy at the same time but that he did see him lying down upon the track about 40 feet ahead; that he applied the brakes immediately but was unable to stop the train in time to avoid injury. This case has previously been before this court several times. Dubs v. Northern P. R. Co. 42 N. D. 124, 171 N. W. 888, id. 47 N. D. 210, 181 N. W. 606, id. 50 N. D. 163, 195 N. W. 157. Por a more ample statement of the facts, reference may be had to the previous appeals. Upon this trial the engineer was called and a witness for the plaintiff and testified that he saw the dog about 300 or 400 feet away, lying crosswise between the rails, and then, on cross-examination, that he was about 40 feet from the boy when he recognized that there was a boy on the track. He testified substantially the same way upon former trials' but, in the first, not as a witness for the plaintiff. The appellant contends that the plaintiff is precluded by the testimony of this witness as to the time when the engineer saw the boy and that since, according to his testimony, he did not see him in time to avoid injury, and since liability must be predicated on the failure to exercise due care after discovery of the boy in the perilous situation, no recovery can be had. Tills court upon former appeals in this case, particularly those reported in 42 N. D. 124, 171 N. W. 888 and 50 N. D. 163, 195 N. W. 157, was of the opinion that in view of all the circumstances such as the time of day, the straight track, the comparatively unobstructed view ahead, except for the dog which was not large, and from the fact that the engineer was keeping a lookout, the whole evidence would support a finding by tho jury that the engineer had seen the boy earlier than he said he did. We were of the opinion, therefore, that there was sufficient evidence to support a recovery under the last clear chance doctrine. But, in view of the doubt as to whether the jury had intended to find, or had actually found, that the engineer saw the boy in time to avert injury, it was *120 suggested that in the event of a new trial special interrogatories ought to be submitted to the jüry covering the controlling questions of fact arising under the last clear chance doctrine. In passing, it may be proper to remark that upon one' subsequent trial the jury answered such specific interrogatories in favor of the defendant, but upon this trial the jury answered as follows: Question No. 1. How far was the engine from the boy when the engineer actually and in fact saw the boy on the track, to know it was a boy ? A. 400 feet. Question No. 2. Did the engineer actually and in fact see the boy, and know it was a boy on the track, in time to stop the train and avoid injuring him? A. Yes. Question No. 3. Did the engineer use reasonable care, after the discovery of the boy on the track, to avoid injuring him? A. No. In the light of the holdings of this court upon the former appeals, which have become the law of the case, it is unnecessary to discuss the sufficiency of the evidence generally to warrant the above findings: ■An examination of the transcript shows that the facts developed upon this trial are so far similar to those presented in the previous appeals that they would not warrant a different conclusion on the sufficiency of the evidence. Does the fact that the plaintiff upon this trial made the engineer his witness alter the situation? We are of the opinion that it does not. A lawsuit is a proceeding designed to ascertain facts and to attach to such facts proper legal consequences. Whatever force there may be in the policy that treats one who produces a witness as a sponsor for the truth of his statements, we are satisfied that, in the light of the true object of a judicial proceeding, the policy w'ould fail of its purpose if carried to the extreme of binding one by testimony elicited on cross-examination from witnesses whose natural position is adverse to the party calling thorn. At the time the plaintiff put the -engineer on the witness stand in this case his counsel knew full well what he would testify to if asked concerning when he saw the boy, for he had testified to this fact upon the former trials. To hold, therefore, that the plaintiff is bound by reason of having used this witness *121 would be to place an obstacle in the path of litigants seeking to develop facts, as they would, in effect, be penalized for resorting to witnesses having knowledge of the facts and whose testimony might be more or less essential. See Jones-, Ev. § 857 (860). . There is a further contention that the court erred in not submitting to the jury the question of the plaintiff’s contributory negligence. It is apparent from the instructions as a whole that the defendant was not prejudiced by the omission of such an instruction. The jury was repeatedly told, in substance, that the defendant was not liable except for the failure of the engineer to exercise ordinary care after the actual discovery of the boy on the track in a perilous position. It does not appear that an instruction on contributory negligence was requested and, in view of the instructions actually given, the jury could scarcely have been misled by the omission of such an instruction. The boy’s-presence upon the track in the position he occupied was, without doubt, negligence as a matter of law and the instructions given were, in effect, predicated upon such contributory negligence. There is a further contention that there was error in admitting the-evidence of two witnesses taken at a former trial. There is no merit in this contention. It sufficiently appeared that those witnesses were out of the state and not subject to compulsory process; also, that their evidence was read from a settled statement of the case. There are additional assignments not going to the merits of the case, but we are of the opinion that the record amply indicates that no error prejudicial to the defendant has occurred, and hence we deem it unnecessary to discuss them. Judgment affirmed. Bronson, Ch. J., and Birdzell, Christianson, Johnson, and Nuessle, JJ., concur.