Washington Railway & Electric Co. v. Dittman

Mr. Justice Pobb delivered the opinion of the Court: We think that under the averments of the declaration the plaintiff was properly allowed not only to show that the accident occurred as-alleged, but the conditions surrounding the curve. As observed by the learned trial justice, a different degree of caz*e must be exercised in going around a very abzmpt curve than in rounding a hardly perceptible one. So, too, if the track was very uneven on a curve, a different degree of care might be necessary than would be z*equired in rounding a curve whezn conditions wez’e different. It is proper to, permit upon cross-examination the bringing out of anything tending to contradict, modify, or explain the testimony given by a witness on his direct examination, or any logical inference resulting from it that may make for the party calling him. The general z*ule is that if a party wishes to examine a witness as to matters not coming within these limitations, he must do so by making him his own witness and calling him as such in the subsequent progress of the case. Philadelphia & T. R. Co. v. Stimpson, 14 Pet. 448, 10 L. ed. 535; 1 Greenl. Ev. Secs. 445-447. In the.pz*esent case the witness had testified, under direct examination, that he was motorman of the car at the time of the accident, which happened on the curve in question, and while, according to his testimony, his car was running about 2-£ miles an houz\ In other words, the witness had stated under direct examination just where the accident occurred and the speed, of his car at the time. The question [93] asked in cross-examination merely tested his recollection as to conditions existing at the time, without in any way attempting to obtain from the witness a characterization of such conditions. We do not think it reasonably can be said that this testimony was not properly admitted. But even if it should be assumed that the cross-examination of the above witness was not responsive to his direct examination, the result would be the same, since it could not be said that there was any abuse of discretion by the trial court. In Wills v. Russell, 100 U. S. 621, 626, 25 L. ed. 607, 608, it was held that “the mode of conducting trials, and the order of introducing evidence, and the time when it is to be introduced, are matters properly belonging very largely to the practice of the court where the matters of fact are tried by a jury.” The court further observed that while it had been ruled that a judgment will not be reversed merely because the rule limiting the cross-examination to matters opened by the examination in chief was applied and enforced, “those cases do not decide the converse of the proposition, nor is attention called to any case where it is held that the judgment will be reversed because the court trying the issue of fact relaxed the rule and allowed the cross-examination to extend to other matters pertinent to the issue.” See also Cate v. Fife, 80 Vt. 404, 68 Atl. 1. The judgment must be affirmed, with costs. Affirmed.