District of Columbia v. Flagg

Mr. Justice Van Orsdel delivered the opinion of the Court: This is an appeal from a judgment in favor of appellee, Walter P. Plagg, plaintiff below, in a suit brought against the District of Columbia to recover damages for personal injuries received as the result of the explosion of a boiler at the Bryant .street pumping station in this District. At the time of the accident, plaintiff was employed by the defendant as a laborer and boiler cleaner at the pumping station. It was his duty, among other things, to clean the boilers and connecting tubes when any one of the six boilers was out of use for this purpose. According to plaintiff’s testimony, about 1 o’clock on the day of the accident, he was directed by the chief engineer to repair the coal chute, the top of which was about 12 feet above the floor of the building. The chute was square and slanted down into a round tube through which the coal was conveyed to the furnaces. Plaintiff was on top of the chute engaged in repairing it when the explosion occurred, and he was precipitated to the floor below, receiving the injuries complained of in this suit. Counsel for the District assign error in that the court, on objection of counsel for plaintiff, • refused to permit the chief [75] engineer of the water department of the District, a witness for defendant, to answer the following question: “How long had it been the custom, if there is a custom, to run a boiler out there without putting it out of service and cleaning it?” This was offered to rebut the following testimony by plaintiff: “There was no regular time for cleaning the boilers; they ran all the way from two to three months without cleaning. Plaintiff never knew of any explosion while he was employed at the pumping station, but had seen the tubes so bad that they could not hold steam.” The crucial issue in this case was whether or not the tubes were maintained and used in a defective condition. The above testimony on behalf of plaintiff was both damaging and material as tending to establish the negligent conduct of defendant’s agents, which, it was alleged, contributed directly to the accident. It was reversible error to refuse defendant the right to meet this evidence by material testimony which it was seeking to elicit by the question objected to and ruled out by the court. It is difficult to understand upon what theory this evidence was rejected. It has been suggested that, inasmuch as the case was limited to the condition of boiler No. 4, and it was stipulated as to the length of time it had been in operation since it was cleaned, it was incompetent to attempt to prove a custom. We think evidence of general custom in the operation of these boilers was admissible as bearing upon the question of negligence, since there was much evidence to the effect that the tubes of this particular boiler were in a defective condition when it was last cleaned and put into service. However, the competency of this evidence is not important, since the inquiry was first made by plaintiff. He could not open up this field of investigation, and, after having fully explored it himself, close the door against his adversary. The evidence was material, and, if the inquiry was unduly broadened, the responsibility, rests with the plaintiff. In personal injury cases, this court has announced a strict rule in requiring the question of negligence to be submitted to the jury. Barstow v. Capital Traction Co. 29 App. D. C. 362; Capital Traction Co. v. Divver, 33 App. D. C. 332; Capital [76] Traction Co. v. Apple, 34 App. D. C. 559; Capital Traction Co. v. Crump, 35 App. D. C. 169. To judicially deprive the. District of the benefit of this evidence, which goes directly to the question of negligence imputed to it, and upon which plaintiff can alone recover, would be an unwarranted invasion of the prerogatives of the jury. As was said by Mr. Justice Kobb in the Barstow Case, supra, where the issue of negligence on the part of the corporation against which the liability was sought to be established was exceedingly close: “The jury system is the law of the land, and disputed questions of fact arising out of the manifold relations of men are not to be determined by the court as matter of law,"but are to be submitted to the jury,— the tribunal whose special function it is to pass upon such questions. The wisdom of this system, and the danger encountered in departing from it, are everyday apparent. It is a protection to the weak and to the strong alike, and, as long as it maintains, respect for the law will continue, because the verdict of the jury is usually the reflection of public sentiment. Experience has demonstrated that, however learned in the law he may be, and however conscientious he may be, a judge, being removed from the practical affairs of life, is less qualified to determine questions of fact than twelve men taken from the everyday walks of life.” Not so important, since the evidence was perhaps cumulative, but equally erroneous, was the refusal of the court to permit the witness Bradshaw to testify, upon the ground that he had remained in the court room in violation of an order of court excluding the witnesses from the court room during the trial. It was stated at bar, and not controverted, that he was at the counsel table during the trial as the representative of the District. It is always improper to exclude a litigant, and we think the same rule should apply to the representative of a corporation. Heaton v. Dennis, 103 Tenn. 155, 52 S. W. 175; Lenoir Car Co. v. Smith, 100 Tenn. 127, 42 S. W. 879; Cottrell v. Cottrell, 81 Ind. 87. But in this jurisdiction a witness is not disqualified for violating an order of exclusion from the court room. “If a witness disobeys the order of withdrawal, while he may be proceeded against for contempt, and his testimony is [77] open to comment to the jury by reason of his conduct, he is not thereby disqualified, and the weight of authority is that he cannot be excluded on that ground merely, although the right to exclude under particular circumstances may be supported as within the sound discretion of the trial court.” Holder v. United States, 150 U. S. 91, 37 L. ed. 1010, 14 Sup. Ct. Rep. 37. It is undoubtedly true that an instance might arise, as suggested in the case just cited, where the court would be justified in refusing to permit such a witness to testify, but it is the exception to the rule, and should be exercised only in an extreme case, and where it clearly appears that no injustice will result. Before excluding a witness in any case, the court should inquire into the circumstances of the violation of the order, and unless it appears that the witness acted by the advice or collusion of the litigant on whose behalf he is to testify, he should not be excluded. The judgment is reversed with costs, and the cause is remanded for a new trial. Reversed and remanded.