Smith v. Atlantic & Charlotte Air Line Railway Co.

Hoke, J., after stating the facts: It was admitted on the argument that defendant company was negligent in failing to provide an engine properly equipped for the work in which the intestate was engaged, and it is urged for error that the court declined to charge as requested by defendant on the issue as to contributory negligence, and this chiefly on the following statements appearing in the cross-examination of the plaintiff’s witness, D. II. Plott: “Q. You made a statement immediately after this accident, did you not? “A. Yes. “Q. I will ask you if in this statement you did not say this: ‘The footboard was in good shape. This negro knew as well as I did that there were no grab-irons on this engine. I had warned him half a dozen times and told him to be careful.’ ” (Plaintiff objected to this question because he has offered no testimony to prove that his intestate was ignorant of the fact that this engine w.as not equipped with grab-irons, and because witness has not sworn that the plaintiff’s intestate knew that there were no grab-irons on the engine, or that he had warned said intestate that there were none, and that he should be careful on that account. Objection overruled. Plaintiff excepts). — 607 — “A. Yes; I made that statement. “Q. I will ask yon now if you had not warned Wright numbers of times that there were no grab-irons on this engine and to be careful.” (Plaintiff objects. Objection overruled. Plaintiff excepts) . “A. Yes; I had warned him. “Q. That is the statement you made, is it not ? “A. Yes; that is my signature to it. “Q. Eid you not state at the time that ‘I told this negro at least a dozen times not to stand on the track and get on an engine as he did last night’ ?” (Plaintiff objects. Objection overruled. Plaintiff excepts). “A. Yes; I told him that. There was a footboard on the rear'of this engine. We were going down to get out of the way of No. 35.” It is the rule with us that the cross-examination of an adversary’s witness is not necessarily confined to matters about which the witness has testified on his examination in chief, but may extend to and include any matter relevant to the inquiry. State v. Allen, 107 N. C., 805; Sawrey v. Murril, 3 N. C., 397. This,, too, seems to be the rule recognized and followed in the English courts, though there is much conflict of authority on the question in this country. An interesting discussion of the subject will be found in Professor Wig-more’s work on Evidence, secs. 1885 to 1890, inclusive, in which the author gives decided intimation that the doctrine as it obtains in this State'is supported by the better reason. The evidence, then, must be considered and dealt with as if it had come from plaintiff’s witness, and this though it was in no way responsive to the testimony given in chief and may tend only to support an affirmative defense. We do not conclude, however, as claimed by defendant, that because this is true the testimony of the witness must be taken as importing — 608 — absolute verity, nor that the plaintiff is thereby precluded from insisting on any position which may contradict or in any way antagonize the statements made by his witness. While it is accepted doctrine that one who offers a witness “presents him as worthy of belief,” and except, perhaps, where an examination is required by the law, as in the cases of subscribing witnesses to wills and deeds (Williams v. Walker, 2 Rich. Eq., 294; 46 Amer. Dec., 53), a party will not be allowed to disparage the character or impeach the veracity of his own witness, nor to ask questions or offer evidence which has only these purposes in view, it is always open to a litigant to show that the facts are otherwise than as testified to by his witness. State v. Mace, 118 N. C., 1244; Chester v. Wilhelm, 111 N. C., 314. And this he may do, not only by the testimony of other witnesses, but from other statements of the same witness, and at times by the facts and attending circumstances of the occurrence itself, the res gestee. Becker v. Koch, 104 N. Y., 394. In the present case, on his examination in chief, the witness Plott had stated in reference to this occurrence that “he stepped on the footboard and reached up as usual to catch the grab-iron or something, whatever he could.” And again: “I do not know why Wright did not catch the grab-iron. A switch engine usually has a grab-iron extended across the top or end sill, four or five inches high.” The statement brought out in the cross-examination, as we interpret it, nowhere intimates that any present warning was given by the witness that the engine was defective. The testimony is to the effect that at some previous time or times such warning had been given and the intestate directed to be careful, and from the facts attending the occurrence, as given by the witness in his examination in chief, the jury might have concluded that the witness, in his written statement, had been mistaken as to the engine, or that it was so long before the intestate could have reasonably inferred that the defect had been remedied, or — 609 — they may have determined to reject it altogether as unworthy of credit. The credibility of testimony is for the jury, and it is theirs to accept or reject all or any part of the witnesses’ testimony, as it may convey to their minds the impress of truth. State v. Hill, 141 N. C., 769; State v. Green, 134 N. C., 658. Again, while the statements made on this cross-examination are evidence on the issue as to contributory negligence,. and were so submitted to the jury as a separate and complete defense, which the defendant’s position seeks to make them, these statements chiefly derive what force and significance they may have from the fact that they tend to establish that the intestate at the time of the occurrence was acting in disobedience of orders which the conductor at some previous time, and when acting as vice-principal, had given for the employees’ protection. It does not clearly appear from the evidence that the conductor, when the alleged previous order and warnings were given, was then acting as vice-principal towards the intestate or giving an order to govern his future conduct; but if this be conceded, and the directions and warnings given by the conductor at some previous time should be allowed the force and effect of a rule of the company made for the employees’ protection, it should be subject to the same limitation as a rule. It must be an order given and received with the expectation .and intent that it should be observed; and, as in the case of rules, it was open to the parties to show that no such intent existed — that it was simply talk, and, by the attitude of the parties and their conduct concerning it, that the order as a rule had been waived or abrogated. In that aspect the statements made in this cross-examination were fairly submitted to the jury in the full and comprehensive charge of the court. Among other things said by the court in reference to these orders having the force and effect of rules made by the company, the Judge below said: “Now, I give you that instruc — 610 — tion, gentlemen of tbe jury, subject to the modification that the effect of an order given by Plott (who, if you believe the evidence, was a superior of the plaintiff’s intestate) was the same as a rule promulgated by the railroad company itself, and that such an order could be waived by the defendant as well as a rule made by the railroad company itself could be waived. “The law is that the violation of a known rule of the company made for an employee’s protection and safety, when the proximate cause of such employee’s injury, will usually bar a recovery. This is only true, however, of a rule which is alive and in force, and does not obtain where a rule is habitually violated, to the knowledge of the employer or of those who stand toward the employer in the position of vice-principal, or when a rule has been violated so frequently and openly and for such a length of time that the employer could by the use of ordinary care have.ascertained its nonobservance.” This was a correct statement of the law as to the effect of this order of the vice-principal having the force and effect of a rule of defendant company, and the facts in evidence fully sustain the verdict rendered under the charge. While the conductor may at some previous time have warned the intestate as to the defect in the engine and the position taken by the intestate in getting aboard, the evidence shows that the intestate on this occasion acted as all the other hands engaged in this business were accustomed to act, including the conductor himself; and in support of this position it further appeared that in the present instance the conductor himself was standing on the footboard in full view and gave no warning and made no protest. The intestate might have concluded that his superior’s previous speech concerning this work was not expected or intended to be obeyed. The facts of this case are in many respects similar to those presented and considered in Biles v. Railroad, 139 N. C., 528; Coley v. Railroad, 128 N. C., 534; and a correct appli — 611 — cation of the principles declared in those decisions-will sustain and justify the recovery bad by plaintiff in the present action. There is no error, and the judgment below is affirmed. No Error.