Georges v. Sheridan & Willamina R. R.

JOHNS, J. In his brief, respondent says: “As evidence tending to prove any issue in this case we do not contend that George Gones’ testimony was competent. But as a part of a record offered to impeach Banis we contended it should go to the jury so they could determine from all that transpired before the coroner’s jury whether Peter Banis by testifying, ‘The ground was level all right,’ contradicted the testimony he gave on this trial. It might well be, as we contended, that, in the light of the whole record before the coroner’s jury, the surrounding ground was level in a general sense, and yet there be a pile of dirt at the particular place where the accident occurred. “However that may be, the court admitted the whole record for the limited purpose of the impeach [129] ment of Banis, and in order that the jury might determine whether Banis contradicted himself on the two occasions. “If it was error to admit this record, and we readily concede it was'if admitted as tending to prove any issue made by the pleadings, the question to be determined here, as counsel suggest in their brief, is whether such error was prejudicial to defendant when the court expressly limited the jury’s consideration thereof to the impeachment of Banis and expressly instructed the jury to disregard it for any other purpose.” 1,2. The proceeding before the coroner’s jury was an ex parte investigation by the state, to which the defendant was not a party and by which it was not bound. The offer of the defendant was limited to the testimony of Peter Banis, and was for the purpose of showing that he had testified one way at the coroner’s inquest and another at the trial, and it was not offered for any other or different purpose. It was in the nature of an impeachment of his evidence. As shown by the bill of exceptions, the physical condition of the ground, and as to whether “the deceased slipped and fell on a bank or mound of earth,” was an essential and important question in the case, and was “the principal ground of negligence relied upon by the plaintiff.” Gones was an eye-witness to the accident and he testified before the coroner’s jury that the ground was “rough,” and “his feet slipped on a bank of dirt.” Gones was not a witness in the Circuit Court, and his evidence before the coroner’s jury was incompetent for any purpose in the trial of this case. The condition of the ground where the accident happened was an important fact, which should have been tried and determined from competent testimony, as any other [130] fact in the trial of a case. The evidence of the witnesses before the coroner’s jnry conld not be introduced or used for the purpose of showing the physical condition of the ground; or that there was a bank or mound of earth; or that “it was rough”; or that “his feet slipped on a bank of dirt.” Respondent concedes that its admission was error, but claims that the evidence was withdrawn, and that the error was cured by the remarks and instructions to the jury above quoted. In its remarks to the jury, the court said that; “Inasmuch as his contention was that he may not have said so, or did not understand it, I thought it best to allow the entire proceedings of the coroner’s jury to go before you” —and that Le admitted it for the sole purpose “of determining whether there was testimony given by the witness at that investigation which was contrary to the testimony which he gave here. The testimony given in that case and not given here is not to be considered by you only in so far as you think it may throw light upon the question as to whether this witness testified at this time differently than the way he testified before the coroner. That is the only thing it is in the case for.” In other words, because Banis testified one way before the coroner’s jury and another at the trial, and was then claiming “that he may not have said so, or did not understand it,” the testimony of Clones that the ground was “rough,” and that “his feet slipped on a bank of dirt,” was permitted to stand for the purpose of corroborating the testimony of Banis given at the trial. The question as to whether there was a bank or mound of earth was the important issue at the trial, and, under the rules of evidence, should have been proved as [131] any other fact. Upon that point, the testimony of Gones before the coroner’s jury was incompetent for any purpose. It was given in a proceeding to which the defendant was not a party. Neither was it competent as tending to corroborate the testimony of the witness Banis given at the trial, yet it was permitted to stand and to be considered by the jury for that very purpose. We do not know of any rule of law by which the testimony of one witness given at a trial can be corroborated by the evidence of another and a different witness given at a coroner’s inquest in and to which the defendant in the action is not a party. In its charge, the court says: “It is claimed that what he said there was contradictory to what he said here. He tried to, or qualified his statements by saying many things, and I thought it better to let the entire testimony go to you and let you determine whether or not, taking into consideration all that was said and the way in which it was said, whether or not he contradicted himself at this time.” Here, again, the jury was told that it might consider the testimony of Gones at the coroner’s inquest for the purpose of corroborating the evidence of Banis given at the trial. Respondent relies upon State v. Aiken, 41 Or. 294, 299 (69 Pac. 683, 685), in which this court says: “A sharp conflict of judicial utterance is to be found in respect to whether an error committed by admitting incompetent testimony is cured by withdrawing it: 1 Thompson, Trials, § 723. Whatever the rule may be in other states, it is quite well settled in this that an error committed by inadvertently admitting improper testimony is cured by specifically withdrawing it.” The opinion also holds that: [132] “The admission of incompetent prejudicial testimony influences the minds of jurors, and, in order to remove the impressions thus created, the direction of the court not to consider such testimony must he so specific that the jurors cannot possibly mistake the instruction.” That case was reversed for the failure to give such specific instructions. In the instant case the testimony of Gones as a witness at the coroner’s inquest was introduced at the trial, and, in effect, the jury was advised and instructed that it had a right to consider that testimony as tending to corroborate the evidence of Banis at the trial. It never was admissible for any purpose. It was permitted to remain in the record for a limited and defined purpose. There was no specific withdrawal of the incompetent testimony within the meaning of State v. Aiken, 41 Or. 294, 299 (69 Pac. 683, 685). Assuming that the error could have been cured, the evidence should have been withdrawn for all purposes, and the jury should have been specifically instructed that it had no right to consider it for any purpose. Upon the facts in the record, the admission of Gones’ testimony was prejudicial error, which was not cured by the remarks or instructions of the court. The judgment is reversed. Reversed. Burnett, C. J., and McBride and Bean, JJ., concur.