Full text
The Georgia Railroad and Banking Co. v. Smith
Bleckley, Chief Justice. 1. The action was for killing a mare by the running of a locomotive and train. The only witnesses examined who knew the facts bearing upon diligence were the engineer and fireman. Taking the testimony of these witnesses as true, the exercise of all ordinary and reasonable care would be manifest. The evidence of the engineer was taken by interrogatories.
He had testified orally in a previous trial of the case, and a brief of his evidence as then delivered was included in an approved brief of the whole evidence given in at that trial. Extracts from that brief were read on the second trial to impeach his credit and weaken his testimony as taken by interrogatories.
This was done without laying any foundation for such impeachment, the objection being that the witness’ attention had not been called to the brief, or that the brief was ever read over to him, or that he had assented to its contents. The direct question was ruled in Taylor v. Morgan, 61 Ga. 46, and in Reid v. State, 81 Ga. 760. These cases hold that the impeaching evidence was not admissible.
It would have been admissible if the witness’ attention had been called to the brief and an opportunity afforded him to explain. Cox v. Prater, 67 Ga. 588. The code, §3872, dispenses with such a preliminary where the statements of the witness are written and have been made under oath in connection with some judicial proceeding. This exception accords with Williams v. Chapman, 7 Ga. 467, and Thomasson v. Driskell, 13 Ga. 258.
With the preparation and approval of a brief of evi 534 dence the witness has nothing to do. It is not a written statement made under oath by him. Consequently, he is entitled to have his attention called to it before being discredited by its contents.
It is said this could not be done, as it was not known previously to the taking of his interrogatories that his evidence on the second trial would vary from the statement of it contained in the brief as given in on the first trial; but this difficulty could be met by suing out interrogatories and therein calling his attention to the discrepancy. The foundation for impeaching a witness may be laid in this way. Killian v. Railroad Co., 79 Ga. 236.
Of course, if necessary, a continuance for this purpose ought to be, and would be, granted. 2. The plaintiff testified at the trial that the mare was worth $200.00. There is evidence that shortly after the animal was killed, he said to one of the employees of the railroad company, in answer to a question by this employee (whose duty it was to make “stock reports”), that she was worth $135.00. Being told that if he would be reasonable the company might settle with him, he said he would be satisfied with $110.00.
The plaintiff admitted that he said to this witness, if the company would pay him without any trouble or expense on his part, he would take $110.00 in full - satisfaction of his damages, but denied saying that the mare was worth only $135.00. So far as appears, all this evidence was admitted without objection. The court charged the jury that: “Certain statements of plaintiff as to the value of the mare have been admitted in evidence, which were made shortly after she was killed.
If these statements were made in an offer of compromise, you are not to consider them in arriving at the value of the mare.” The objection to this charge specified in the motion for a hew trial, is that there was no evidence to authorize it. It seems to us that 535 there was evidence going to show that the whole conversation, so far as detailed by the witnesses, had relation to a contemplated settlement, and the terms of it.
The charge was, therefore, not amenable to the particular objection specified; but whether the answer of the plaintifi to the question as to the value of the mare, if he made such answer, was evidence as an independent admission within the principle of the authorities on that subject, we need not decide.
A new trial should have been granted for error in admitting the impeaching evidence, for if that evidence had any efiect, it was so far prejudicial; and if it had none, the case was well-defended and the verdict should not have been what it was. ■ Judgment reversed.