Kerr v. Hodge

Conger, P. J. This was an action on the case brought by appellee against appellants under Secs. 14 and 16 of an act approved June 16, 1887. Session Laws of 1887, page 235. Sec. 16 is as follows: “ The owners, agent or operator of every coal mine shall keep a supply of timber constantly on hand, of sufficient length and dimensions to be used as props and cap-pieces, and shall deliver the same as required, with the miner’s empty car, so that the workmen may at all times be able to properly secure said workings for their own safety.” The declaration alleged a failure on the part of appellants to perform this duty, by reason of which appellee was injured; and upon a plea of not guilty, trial was had resulting in a verdict and judgment for appellee for $850. The question whether appellants had supplied props and cap-pieces in accordance with the spirit of the law, was one of the vital questions in the case. Upon this question, especially, the evidence of both the appellants was all important, and a strong effort was made upon the trial, by appellee, to break down their credibility before the"jury, by showing that they had made statements on former trials inconsistent with their statements made on the present trial. It was therefore of the utmost importance that the jury should be correctly instructed upon this question, so that they might determine, under the rules of law, what weight and credence to give to the various witnesses-Under these circumstances the court gave to the jury, on behalf of appellee, the following instruction :. 16. “ The court instructs the jury that one of the methods of impeaching a witness is to show by competent evidence that such witness has made a statement or statements out of court, or in court at another time, contrary to, or different from his testimony in the case in which he testifies as a witness in some matter material Ao the issue in the case on trial; and in this case, if you believe from the evidence that any witness has been successfully impeached, yon have a right to disregard the entire testimony of such witness, except in so far as his testimony may be corroborated by other and credible evidence in the case.” We have no doubt that the jury would understand this instruction to mean that if any witness had been impeached in the particular manner pointed out in the first part of the instruction, then they were at liberty to disregard the entire testimony of such witness, except, etc., in so far as corroborated. Appellee insists that this instruction is correct, and refers to Greenlea.f on Evidence, Sec. 462, where it is said : “ The credit of a witness may also be impeached by proof that he has made statements out of court, contrary to what he has testified at the trial.” Appellee also refers to several cases in the Supreme Court, where the same general rule is laid down. The above rule is sound, for it probably always affects the veracity or the memory of a witness to prove former contra‘dictory statements. Craig v. Rohrer, 63 Ill. 325. Hence it is always proper to permit such proof to go to the jury and to tell them to consider it in determining what credit and force shall be given to a witness under such circumstances. But this instruction tells the jury that if a witness has made previous statements contrary to or different from his testimony on the witness stand, in a material matter, the entire evidence of such witness is to be disregarded, except in so far as it may be corroborated by other credible evidence. Under this instruction the jury would have no right to consider whether the former statements were made inadvertently or under an honest mistake as to the facts; but must, under such circumstances, sweep his testimony aside the same as though they were to believe that the witness had wilfully and intentionally committed perjury. This is not the law. The jury might have been told that contradictory statements should be considered by them in determining the weight and credit to be given to any witness, but they should not have been told that they could rightfully disregard the entire testimony of a witness for that reason, unless such witness makes them wilfully, or that the false statements must be knowingly made. McClure v. Williams, 65 Ill. 390; Pollard v. The People, 69 Ill. 148; Linck v. Whipple, 31 App. 155. The seventeenth instruction given appellee is as follows: 17. “The court instructs the jury that if you believe from the evidence in this case that any witness has wilfully testified falsely to any matter, material to the issue in the case, you have the right to wholly disregard the testimony of such witness, except in so far as such witness may be corroborated by other credible evidence in the case.” ' This instruction does not, in our opinion, cure or avoid the vice of the sixteenth. The jury would naturally conclude that they referred to different questions, and while the seventeenth is good law, its probable effect upon the jury would be to make the sixteenth more dangerous and vicious than it would have been alone. The jury might reasonably conclude that as the seventeenth required wilful perjury on the part of a_ witness to discredit him entirely, the sixteenth did not, but only that contradictory statements upon material questions should be shown. We can not think, that under this sixteenth instruction, appellees have had a fair trial, or that justice has been done them, and therefore the judgment of the Circuit Court will be reversed'and the cause remanded. Reversed and remanded.