Edwards v. Foote

Grant, J. (after stating the facts). 1. The first error alleged is upon the ruling of the court in refusing to permit a witness for the defendant to testify to what Mr. Porner, the driver, said after the accident. The witness was the conductor of the car. The question arose in this way: “ Q. Did you have any talk or hear any talk between the driver and any one after the accident occurred ? “A. Yes, sir. “ Q. What, if anything, did the driver of the vehicle say with reference to his getting across the track at that time in front of the car ? “ A. I couldn’t say that those statements were made in Edwards’ presence. I don’t think that Edwards could have heard the statement.” The question was then objected to, and the objection sustained. We think the ruling of the court was correct. The evidence did not show that the conversation occurred at or immediately after the accident. Evidently Edwards had left. It was not a part of the res gestae. Mabley v. Kittleberger, 37 Mich. 360; Lane v. Bryant, 9 Gray, 245 (69 Am. Dec. 282). 2. We think the question of negligence was properly submitted to the jury. The distance of the car from the place of the accident when it appeared that there was danger of a collision, and the distance it went after the collision, were controverted questions of fact. The car was going upgrade. The speed of the car depended largely upon these distances. The plaintiff testified that, when the horse first stumbled, he looked at the car, and, in his judgment, it was between 10 and 12 rods distant. While common experience teaches every one that an opinion under these circumstances is not very reliable, still, that was a question for the jury, in connection with all the [125] other testimony in the case upon the matter of speed and distances. The question of liability is a very close one, but we think there was sufficient conflict of evidence to make it a question for the jury. 3. It is also urged that plaintiff was guilty of contributory negligence in not jumping from the buggy when he saw the car approaching. It was, of course, his duty to do this if he saw the danger, and had the time and oppor-, tunity to do so. The difficulty in jumping from the carriage, with the horse floundering about and jumping in the effort to regain her feet and run on, is apparent. We do not think that plaintiff, as a matter of law, was required to take the risk; nor do we think the evidence conclusively shows that he fully comprehended the situation, so that he was guilty of negligence in not jumping from the carriage. It was a question of fact for the jury to determine whether, under the circumstances, it was his duty to do so, and this was left fairly to them. 4. Mr. Forner, plaintiff’s son-in-law, was not called by him as a witness. It appeared upon his cross-examination that Mr. Forner had been interviewed by plaintiff’s attorneys, and after such interview they decided not to call him as a witness. Upon a motion for a new trial, defendant produced Mr. Forner, and examined him before the court. His testimony was material to the defense, and was contradictory to that of the plaintiff. The court, however, denied the motion for a new trial upon the ground that defendant had not exercised due diligence in procuring Mr. Forner as a witness at the trial. We see no reason to interfere with this ruling. Mr. Forner was within the jurisdiction of the court, and, if it had been necessary, counsel might have applied for a delay in the trial to subpoena him; but it does not appear that any such effort was made, or, in fact, that any effort was made to produce him. For this reason we must decline to interfere with the ruling of the court. The judgment is affirmed. Montgomery, C. J., Moore and Long, JJ., concurred with Grant, J. Hooker, J., concurred in the result.