Beattie v. Grand Trunk Railway Co.

Tbe opinion of the court was delivered by Barrett, J. Assuming, what tbe bill of exceptions does not show, that exception was taken by the defendants to tbe plaintiff’s being allowed to prove, by inquiry of one of tbe defendants’ witnesses, where Eorbusb was that Monday morning, viz., at Nor-thumberland, four miles distant from the court-house, when tbe trial was going on, we think there was no error in this respect. Ball had testified as to tbe condition of tbe track, from observations made by him before and after tbe accident in tbe presence of,^ and in company with Eorbusb. Tbe defendants' controverted tbe truth of Ball’s testimony on tbe strength of tbe testimony of a [278] witness who saw the track at the place of tbe accident only after ■tbe accident. Eorbusb was a section-man in tbe defendants’ employ. In view of tbis conjuncture, it was in accordance with very long and uniform usage to attempt to countervail tbis assault upon tbe truthfulness of Ball, by showing that tbe conduct of tbe defendants in reference to tbis point in the trial, was inconsistent with tbe assumption and claim they were making. If Ball bad .testified falsely as to tbe condition of the road both before and after tbe accident, as seen by him in company with Eorbusb, and it was material for tbe defendants to meet that testimony by showing that it was false, tbe first thought on the subject would be to nail Eorbusb, a fellow section-man, in tbe employ of tbe defendants, who saw all that Ball could have seen and at tbe same time and under tbe same circumstances, as well as a single individual who was there only after tbe accident and not at tbe same time with Ball, and thus not leave the question of Ball’s credit to stand poised between bis own testimony and that of such other single witness. It standing thus poised, we think the attending circumstances gave force to tbe fact that tbe defendants did not •call Eorbusb, nor explain why not, when be was that morning within four miles from tbe court-house, and in tbe defendants’ employ. This being so, it was legitimate to make tbe inquiry, and to use it in argument for tbe purpose shown by the bill of exceptions. Judgment affirmed.