Kansas City Southern Railway Co. v. Belknap

Wood, J., (after stating the facts.) First: We have carefully reviewed the evidence, and are of the opinion that it is sufficient here to support the verdict. Appellee adduced evidence tending to support his contention that the station of “Sulphur Springs” was called by a trainman about a quarter or half a mile before reaching same, and that shortly thereafter the train stopped, and that he, supposing that the train had stopped at its usual stopping place at the station, attempted to debark; that if the train had in fact stopped after the announcement “Sulphur Springs” at the station, instead of at the switch, there would have been no danger at all in his alighting from same on the west side of track where he intended to alight. Appellant contended that the station “Sulphur Springs” was not announced, just before the stop was made at the switch, in the car on which appellee was riding, and that, even if it had been, appellee was guilty of contributory negligence in alighting in the manner he did. These were disputed questions of fact. We can not say frbm this record that they were not sent to the jury upon proper instructions, for, after setting out the instructions given at the instance of appellee, the record recites: “To the giving of instructions numbered-the defendant at the time objected, but the court overruled its objections, and the defendant at the time saved its exceptions.” And after setting out the instructions which appellant asked and which the court refused, the record recites: “The court refused to give said instructions numbered i, 2, 3, 4, 5, 6 and 7, and to such refusal the defendant at the time excepted.” These were clearly objections in gross; and as some of the instructions given were good and some of those refused were bad, under recent decisions of this court there is no error reserved to the ruling of the court on instructions. Kansas City Southern Ry. Co. v. Morris, ante p. 528, and cases cited. It would serve no useful purpose to discuss the issuable facts and the evidence in detail pro and con on the questions of negligence and contributory negligence. These were questions for the jury under the evidence. Second. The court did not err in refusing to allow appellant to show that appellee had been indicted for perjury. The fact that a party has been indicted does not affect his credibility. Stanley v. Aetna Ins. Co., 70 Ark. 107; 30 Am. & Eng. Enc. Raw, 1085 and 86, note 1. Third. There was no error in permitting appellee to ask witnesses of appellant on cross-examination whether or not appellant had furnished them with transportation. The testimony by the simple affirmative response tended to show the bias or interest of the witnesses, and in this way might affect their credibility. The probative force of such evidence may be and is very weak, but the weight of it was for the jury. There was nothing in the question or response to indicate a purpose to enter in detail upon the circumstances tending to create bias, or show the interest of the witnesses. It is proper always to show the bias or prejudice of a witness toward a party • litigant as affecting the credibility' of the witness. This is not collateral matter. Crumpton v. State, 52 Ark. 273. The manner of showing it was not contrary to the rule announced in Cornelius v. State, 12 Ark. 783, 800, 801, and followed in Butler v. State, 34 Ark. 480, but rather in conformity thereto. Fourth. The court permitted appellee to prove that five or six months prior to the injury complained of it had been the custom for some of the appellant’s servants to call the station of “Sulphur Springs” a short distance north of said station. The appellant introduced its conductor and elicited the following: Question: “Does the brakeman ever call the station in the smoker?” Answer: “Once in a while he does after we stop at the station.” Question: “Customarily where does the brakeman call the station?” Answer: “He announces the station after the train leaves Noel, that the train will stop at Sulphur Springs 20 minutes for supper or breakfast.” Again: Question: “In coming out of Noel the announcement or information was given to the passengers that the next station would be Sulphur Springs and 20 minutes for supper?” Answer: “Yes, sir.” Question: “After the train had taken the siding the next announcement would be Sulphur Springs?” Answer: “Yes, sir.” Question: “There was no announcement that you were arriving at the station, other than that prior to the stop for the switch ?” Answer: “None.” Question: “That was customary?” Answer: “Yes, sir.” Question: “Aft.er you had got on to the passing track or the track that you took after throwing the switch, then the station of Sulphur Springs was called?” Answer: “Yes, sir.” Question: “That was your custom?” Answer: “Yes, sir.” Question: “You usually announced it in the smoker, and the brakeman usually announced it in the chair car?” Answer: “Yes, sir; that’s the way of it.” By the above evidence appellant attempted to show that it was the custom on appellant’s trains to let passengers know on coming out of Noel that the next station would be Sulphur Springs, and that the next time, according to the custom, the station of Sulphur Springs was announced was after the train had taken the passing track, after the switch was thrown. The evidence objected to was in rebuttal of this, and was proper. It tended to show that it was the custom of appellant to call the station of Sulphur Springs, not on coming out of Noel, but a short distance north of the station of Sulphur Springs, not after stopping at the switch and after taking the passing track, but north of the station before reaching the bridge and the switch. The appellant, having elicted testimony of the custom, is not in a position to complain of the testimony of appellee on the same subject and in rebuttal of appellant’s evidence. If the court committed error in allowing the testimony as to what was the custom in calling the station to be introduced (as the writer is inclined to think), yet the error, if error, in the opinion of the court was invited, and appellant can not complain. Binding no prejudicial error, the judgment is affirmed.