Baltimore City Passenger Railway Co. v. Knee

Page, J., delivered the opinion of the Court. The narr. alleges that John Knee was a passenger on one of the defendant’s cars ; that near the intersection of Chase and Gay streets the car was stopped on a signal from the conductor, and that Knee, intending to leave it, “ arose from his seat and moved toward the usual place of exit, * * but before he could reach the highway * * the car was suddenly started forward, whereby * * he was thrown to the ground ” and injured. At the trial the plaintiff (having himself given an account of the accident), in support of these allegations, called as a witness on his behalf, one Lewis Winters, who testified that he was about eight or ten feet from the car when Knee was hurt; that he saw the car stop and a couple of women get off, then a couple of gentlemen, and that one of these made a step-, and as he did so the car “ made a jolt ” and he fell; that he caught by the car and was dragged, and that when he came to the sidewalk witness saw his hand was bleeding. The defendant, to rebut this statement, offered several witnesses; two of whom swore positively that Winters was not present at the scene of the accident. To corroborate Winters, the plaintiff called Robert O’Kane and offered to prove by him that Winters, two or three days after the accident, told witness about having seen the accident; he (Winters) said he saw a man hurt at the corner of Broadway and Chase ; he did not say who the man was; he did not mention any name ; he just told me he had seen the man fall and get hurt; he didn’t tell me any of the details.” The counsel for the defendant objected to the admission of this evidence, but the Court permitted it to go to the jury. This constitutes the first exception. Ever since the case of King v. Parker, 3 Doug. 242, it is well settled, according to the weight of authority, that “ what a witness said not upon oath, will not be admitted to confirm what he said upon oath.” Robb v. Hackley, 23 Wend. 55 ; Conrad v. Griffey, 11 Howard, 490. But, though this is the general rule, the text-writers agree that [79] most Courts have held that there “ may be many cases where, under special circumstances, it possibly might be admissible ; as, for instance, in contradiction of evidence tending to show that the account was a fabrication of a late date, ■and where, consequently, it becomes material to show that the same account had been given before its ultimate effect and operation, arising from a change of circumstances, could have been foreseen.” 2 Starkie on Ev., marginal page, 187 ; 1 Wharton on Ev., sec. 570; Rapalje’s Law of Witnesses, sec. 224 ; Taylor’s Ev., sec. 1330. This exception to the general rule seems to rest upon the theory that the witness, having been impeached by evidence showing that he has testified under corrupt motives,, or has fabricated his testimony to meet the exigencies of the case, the fact that he uttered the same statement, shortly after the transaction, and before the motive to fabricate existed, tends to support not only his integrity, but also the accuracy of his recollection. To bring a case within this exception it must appear that the conversation occurred soon after the transaction, is ■consistent with the statements made on oath, and contains such fact or facts pertinent to the issues involved, as reasonably furnish to the jury some test of the witnesses’ integrity and accuracy of recollection. And this is the rule that obtains in Maryland. In the case of Maitland v. The Citizens’ Bank, 40 Md. 540, the rule and its application is stated as follows : “ The evidence admitted under it is not admitted to prove or disprove any fact involved in the issue on trial, but simply to corroborate or support the credibility of the witnesses; * * to show that the witness has been consistent in giving the same narrative of fact; that his •former statements, when'without interest or motive to falsify the truth, consist with his sworn testimony given on trial; and thus to some extent remove suspicion that his testimony has been fabricated to meet the emergencies of the case, or that his recollection has varied, and is therefore not to be relied on. * * The former unsworn statements, as compared with his testimony on trial, should furnish some test [80] of the witness’s recollections, as well as of his integrity.” This is the extent of the rule here, whatever it may be elsewhere. It is an exception to the general rule, and must “not be extended, but applied strictly.” (Ibid) 559; Washington F. Ins. Co. v. Davison, 30 Md. 104 ; McAleer v. Horsey, 35 Md. 464. Now what is this case ? The witness, Winters, had sworn that he was present at the happening of the accident, and gave a narrative of all the facts as he saw them. The defendant produced witnesses who swore he was not present. This went to .a substantial impeachment of Winters. 30 Md. 104. To sustain him the plaintiff offered to prove that two days after the accident Winters told O’Kane that he was present and saw a man hurt at the corner of Broadway and Chase streets, but told him nothing more. Nothing was said about the details of the accident. The issue in this case was, how was the plaintiff injured? The fact óf Winters’ presence was in itself quite immaterial, and if it was not, it could not have been proved or disproved by hearsay. His credibility would undoubtedly suffer if the jury could be made believe he was absent. And it is because of this that it became competent for the plaintiff to rebut the evidence of the defendant’s witnesses that he was not there. But Winters’ unsworn declarations were not admissible for the purpose, and it is not so contended. Nor does the declaration made to O’Kane—that he, Winters, was present and saw a man hurt—have any tendency to confirm the statement as to the manner in which the plaintiff was hurt. It is difficult' to perceive how a declaration like this can prove, or tend to prove, that the narrative of facts made in his sworn statement is not a fabrication,'made to meet the emergencies of the case, or that his recollection has not varied. And while it is clear that if his absence from the scene of the transaction were established to the satisfaction of the jury, it would utterly destroy the witness’s credibility, we cannot perceive how the fact of his having said, two days later, that he was present and saw a man hurt, [81] furnishes even the slightest test that his narrative of how the man was hurt, was made by him either honestly or correctly ; or that such an unsworn declaration, when compared with his testimony, supplied “ a test of the witness’s recollection as well as of his integrity.” The rule is not to be extended, but is to be strictly applied, and only such testimony of this kind as will measure up to these requirements is admissible. We have been furnished with no case in Maryland, or indeed elsewhere, in which it was held that when the impeachment of a witness (who has given in his testimony a narrative of facts) consists of evidence to the effect merely that he was not present at the transaction about which he has testified, a former unsworn declaration that he was present and saw it, is admissible under the rule invoked in this case by the plaintiff’s counsel. In Curtis v. Cook, 6 H. & J. 93, the unsworn statement contained the same facts testified to on trial. In Washington Fire Ins. Co. v. Davison, supra, Davison had testified he was present when the agents of the Insurance Companies examined the premises and pointed out to them the plan of the building about to be erected. McGinnis and Milnor swore that Davison was not present. The plaintiffs then proved that on that occasion McGinnis did a certain act and made a certain remark in regard to the building, which remark he had not communicated to Davison. Davison was then recalled and swore to the occurrence and the remark. The Court then permitted a witness to testify that the next morning Davison mentioned the occurrence and the remark made to McGinnis. It needs no comment to point out how, under these circumstances, the unsworn statement corroborated the testimony he had given. It furnished both a test of his recollection and of his integrity. Bloomer v. The State, 48 Md. 521 ; Mallonee v. Duff, 72 Md. 286. We are of opinion, therefore, there was error in the ruling contained in the first exception. During the progress of the trial Sergeant Zahner, a wit [82] ness for the defendant, testified that after the accident the appellee told him he fell off the car while it was in motion, .and that he (Knee) did not know if it was the fault of the gripman. On cross-examination, Mr. Field asked him the following question: “ Didn’t I ask you (the other day in Court) whether he (the plaintiff) said anything about the particulars of the case to you, and you answered me, he did not?” to which the witness replied: “ No, sir; I don’t remember saying anything about that at all.” .Subsequently Mr. Field tendered himself as a witness and offered to prove that at the time and plaee mentioned he asked the Sergeant: “Did Mr. Knee tell you anything about the details ■of the accident, how it happened,” and the Sergeant replied : “ He did not.” The Court having admitted the evidence, the defendant excepted. This evidence, we think, was properly admitted. Zahner had testified to declarations of the plaintiff inconsistent with the claims he was setting up. The plaintiff was at liberty to rebut his testimony by evidence showing it to be untrue, or by impeaching the witness. With the view of pursuing the latter course, Zahner was asked as to a conversation with Mr. Field, and he stated that Knee had not told him the “particulars ” of the accident ; that is, never told him any of the items of the affair. Mr. Field testified the question asked of the Sergeant was, Did Mr. Knee tell you anything about the “ details’' See., to which he replied in the negative. The objection of the defendant counsel is that the witness had stated Knee had not told him “ the partietdars," and that it was not an impeachment to show that he said, Knee had not told him the “ details,” &c., or, in other words, a statement that one has not heard the particulars, is not contradicted by showing that he had heard the “ details.” The words are, in fact, synonymous, and in ordinary parlance convey the same meaning. (Decided March 26th, 1896). ■fadgment reversed and new trial awarded.