Milliman v. Rochester Railway Co.

Follett, J.: This action was begun July 7, 1892, to recover damages for a personal injury and for an injury to plaintiff’s horse, harness and phaeton, caused, it is alleged, by the negligence of ■ defendant’s motorman.' September 4, 1891, the plaintiff was riding with his daughter and grandchild,, two years old, in a phaeton drawn by one horse. 'The'top of the carriage was up and. the side and back- curtains were closed. The plaintiff sat on the right side, Ins daughter on the left side, and the child between them. They were driving eastward on Monroe avenue on the south side of .defendant’s track. Meigs street crosses Monroe avenue, and. at the place where these streets cross one of the defendant’s east-bound cars collided with the plaintiff’s phaeton, overturning and injuring- it, and also injuring the plaintiff and his horse. The accident occurred about midday. The -car was going eastward and moving about the same rate of speed as the plaintiff’s horse -—five to seven- miles an hour. A steam roller stood on the south side of the avenue and near [111] the Meigs street crossing. As- the plaintiff’s horse approached he was frightened by the escaping steam, shied suddenly to the left (north) and entered on defendant’s track. The plaintiff testified that the car followed along behind the phaeton for 125 or 150 feet and ran into his phaeton. He testified that the first notice of danger he had was the screams of persons behind the wagon, which his daughter heard first and called his attention to; that he immediately pulled his horse to the left to get clear of the track, but before he got off was run into. The daughter was called as a witness for her father and testified that, she heard no gong, but heard voices shouting, and that immediately afterwards the collision occurred. She was not asked by the counsel of either litigant how long after the horse entered upon the track, or how far they had traveled on it, before the collision occurred. Four witnesses called by the defendant testified that the collision' occurred immediately after the horse shied on to the track, and three of them, the motorman and two citizens, testified that before the collision the phaeton was being driven along on the south side of the track and not. more than fifteen or twenty feet ahead of the car, that both were traveling at about the -same rate of speed, and when the horse saw the escaping steam he shied away from it, and the collision occurred. The liability of the defendant turned upon the issue whether the collision occurred immediately after the horse entered upon the track, or whether the car followed the phaeton for 125 feet or more, overtook it and ran it down. The plaintiff’s daughter was not examined upon this question when on the stand, nor w^as she recalled after this vital issue had been so clearly presented by the defendant’s witnesses. The learned trial judge in his charge clearly presented this issue, and after some appropriate remarks upon the burden of proof called the attention of the jury to the fact that the plaintiff’s daughter had not been examined on this issue, although: she had had the same ■opportunity of knowing the facts as the plaintiff, and charged that this -omission might be taken into account in determining on which side the truth lay. The learned counsel for the plaintiff excepted to this instruction, and now urges that it was error, for which a new triaL should be granted. In case a litigant fails to produce a person known to be friendly to him and to his cause, who is so situated that [112] lie must have knowledge of the facts in issue, the jury is permitted to presume that the testimony of that person would not have been favorable to the party. (Kenyon v. Kenyon, 88 Hun, 211, and cases there cited: Thomp. on. Tr. §§ 989, 1045; Taylor on Ev. [8th ed.] § 117.) The existence of this rule is not disputed, but it is urged that it is not applicable to this case, because the daughter was produced as a witness, and that no presumption arises, from the plaintiff’s failure to interrogate her, that her testimony would have heen unfavorable to him. I think the rule is as applicable to a case in which a party fails to interrogate a friendly witness, so situated as to he presumed to have knowledge of the existence or non-existence of the vital facts in issue, as it is to the case of a failure to produce such a witness. Indeed, I think the omission to interrogate a friendly witness in respect, to facts presumably within his knowdedge, is more significant than the failure to call such a person as a witness,’ and that-the presumption that the testimony would not have been favorable to the party’s case is stronger than the one which arises from the failure to produce such a person as a witness. Eldridge v. Hawley (115 Mass. 410) was an action by an indorsee against the maker of a promissory note which had been transferred after it fell due. The defense was that the maker and payee had been partners; that the note was given on a settlement of their accounts and was procured by fraud. The plaintiff called the payee, who testified that the full amount of the note was due, as shown by the hooks of the firm, Avliich were then in liis ■ possession. The defendant requested the witness to produce the books, but he did not. The court instructed the jury, “that, inasmuch as the books-are not in the custody of the plaintiff, no inference is to be drawn from the non-production of the books, it being in the power of either party to summon the witness with the books.” To this instruction the defendant excepted, and it was held to be error, It was held that, whether an inference should be drawn, from the failure to produce the books, against the credibility of the witness, or against the plaintiff’s theory that the amount for which the note was given .was shown by the books to have been owing the payee, was a question for the jury. In that case the defendant’s counsel could have subpoenaed the payee to produce the books, but he was [113] not bound to make the plaintiff’s witness his own, and if the plaintiff failed to have the books produced his conduct exposed him to unfavorable inferences if the jury saw fit to draw them. In the case at bar the defendant was not bound to attempt to prove its defense by the plaintiff’s daughter and witness, and the burden was on the plaintiff to interrogate her as to facts presumably within her knowledge, or expose himself to the hazard of unfavorable inferences. The learned judge did not instruct the jury that they were required to presume that the testimony of the daughter would not have been.favorable to the plaintiff had she been interrogated, but simply that they might take the omission into consideration in determining how the issue should.be decided. The instruction given was not erroneous, and the order should be affirmed, with costs. All concur, except Ward, J., dissenting.