Quinn v. New York, New Haven & Hartford Railroad

Loomis, J. This is a suit to recover damages for causing the death of Michael Quinn, a track repairer in the employ of the defendants on the Air Line Railroad. The court found that the death of Quinn was caused by the neglect of the defendant to provide a reasonable system of rules and regulations, and the execution of the same, relative to giving notice to its employees of the running of extra trains. It was also found that there was no contributory negligence on the part of the deceased, nor of any co-employee, unless it arises as matter of law on the facts. At the time of the injury the deceased and three other track repairers were in a hand-car going to their work when an extra train suddenly appeared coming towards them. All the men on the hand-car except the defendant jumped off before the collision and were saved, but the defendant remained and was killed in the collision. One prominent ground of contention on the trial was whether the deceased was guilty of contributory negligence. Upon this issue the defendant introduced Timothy Hayes, another of the gang of track repairers, who was on the handcar, who testified that he saw the engine about nine hundred feet away; that he called out to have brakes on the hand [51] car; that the car stopped and that all got off except the deceased. The witness stated at length and in detail all the facts relating to the matter in controversy, and was finally asked upon direct examination—“Was there, or was there not, time for Quinn to jump off?” and again, “State whether or not there was time for Quinn to jump off between the time when the order to brake was given and the time of collision.” The defendant claimed these questions to show negligence on the part of the deceased. The court states its ruling as follows :—“ If the testimony of the witness was true, it was manifest that the deceased had ample time to get off the car before the collision, and there was no occasion for the opinion of the witness. The court thereupon excluded the questions for the reason aforesaid, and also upon the ground that the questions called substantial^ for the opinion of the witness as to the negligence of the deceased.” We cannot accept either the ruling or the reasons given as sound. The fact that Quinn had time to get off the car was material, if not absolutely controlling, upon the question of contributory negligence. The court, directly in the face of the proposed evidence, found that he “ was unable to jump off the car in season to save himself,” and thereupon negatived the existence of any contributory negligence as matter of fact. The court gives two reasons for excluding the evidence. The first justifies the exclusion upon the assumption that the witness’s evidence as far as received was true ; the implied argument being that, if true, it proved beyond a doubt the fact which the excluded evidence was designed to prove, and hence no harm was done if the ruling was erroneous. It is however obvious that tile reason as given was not operative. The court did not in reality assume or find the statements true, for in repudiating a conclusion stated as the manifest one upon the assumption referred to, the court in effect repudiated the evidence already given and found it untrue. The controlling reason therefore was not expressed, but [52] was an implied alternative, that is, the evidence as given was not true and therefore any further evidence would not be believed, and hence again no harm was done. The counsel for the plaintiff, both in their brief and in argument, state the point in these words :—“ The witness was not telling the truth, and the court knew he was not, and his opinion would not have had the slightest effect on the court.” It seems to us that this reasoning is not only illegitimate but unsafe and pernicious in its consequences. We may perhaps test the principle by applying it to the trial of the cause itself. How can a case be properly decided until it has been heard ? And how can it be heard, where matters of fact are in issue, without a hearing of the witnesses ? A partial trial is no trial; it is not having “ a day in court.” The whole case may depend on one witness, and such for aught we know was the case here. It will not do therefore to stop a witness while he is about to give important and relevant testimony, merely because the trial judge had imbibed an unfavorable opinion as to his truthfulness. Such early impressions with the very best of judges cannot always be avoided, but we think the experience of triers generally will confirm the statement that such impressions are often dissipated after further patient hearing. Tins brings us to the second reason, which is the important one—Was the evidence admissible ? No claim is made that it was irrelevant to the issue, but the objection involved in this reason is two-fold:—1st, whether the circumstances would allow the witness to give his opinion at all; and 2d, whether, if given, it would have amounted to an opinion as to the negligence of the deceased, which the court and not the witness was to decide. Assuming that the answer involved an opinion, it was yet clearly admissible, for the time required for such sudden movements as are referred to, it would be impossible to estimate in minutes or seconds with any approximation to accuracy; but every observer familiar with the running of trains and hand-cars, as this witness was, would carry in his mind, though unconsciously, the measure of time required [53] for jumping from the car as compared with the time it took the train, after it was discovered, to reach the place of collision. We doubt whether in strictness such evidence should be considered matter of opinion. It would seem to be rather matter of fact to be determined by judgment or estimate. If the mental process be analyzed it would seem to involve just as much a matter of opinion, had the question been how long it would have taken to jump from the hand-car, and how long it took for the train after its discovery to reach the place of the accident. The remaining ground of objection is, that the question called substantially for the opinion of the witness as to the negligence of the deceased. This objection is not well taken, for the question does not call for such an opinion. It calls simply for a fact which constitutes only one element of the question of negligence, although confessedly a very important one ; but other facts must be considered in connection, namely, whether the deceased could see and hear as quickly as others, and whether or not he was lame ; also his position in the car might have been such that he could not jump as soon as others, or, on the contrary, it might have been the best position for the purpose. But if it had been, as the court assumed, the one controlling element in the question of negligence, even then the question would have been proper, for where the point is a proper subject of opinion, and the question is properly framed, it is admissible, though it may be decisive of the question to be decided by the court or jury. Transportation Line v. Hope, 95 U. S. R., 297; Delaware &c. Steam Towboat Co. v. Starrs, 69 Penn. St., 36; Walsh v. Washington Ins. Co., 32 N. York, 443; Moore v. Westervelt, 9 Bosworth, 558; Jameson v. Drinkald, 12 Moore, 157. Another question of evidence, of minor importance, was raised on the trial. The defendant called one Waterbury, the superintendent of its road, “ to prove that the rules and regulations in question were reasonable, sufficient and the best that could be framed to meet the exigencies of the case; ” and he stated in substance that such was his opin [54] ion. Upon his cross-examination he was ashed—“ Does the foreman of the trach section gang now have to report personally to the switch-house to see if there are any trains out ? ” This question, against the objection of the defendant, was admitted by the court simply as cross-examination to affect the value of his opinion as expressed in the direct examination. The witness answered—“ I might have said something of the hind to the section boss, and I believe he did give such an order after the accident.” As the evidence was not received to show negligence, but was restricted by the court to the single purpose of showing that, as the act of the witness was inconsistent with his expressed opinion, it tended to impair its value, we do not thinh it conflicts with the principle adopted in Nalley v. Hartford Carpet Co., 51 Conn., 524. Of course, if the new rule or order was not the act of the witness, but of the railroad company, it could not affect Mm with the inconsistency, but no such point was suggested, and the witness spohe of the order as one which he gave. As the question is presented on the finding we cannot say there was error. The other questions in the case, which are very numerous, call upon this court to review the rulings of the court below relative to the negligence of the defendant, and its duties and obligations to its employees under the facts and circumstances detailed in the finding. As there must be a new trial, which will result in a new finding of facts, we do not deem it necessary to discuss or decide the other questions presented in the record. There was error in the ruling complained of and a new trial is ordered. In this opinion the other judges concurred.