Westphal v. St. Joseph & Benton Harbor Street-Railway Co.

Gkant, J. (after stating the facts). 1. If recovery depended upon the testimony of Mr. Hannon, the court may have been right in directing a verdict. But plaintiff was not bound by his testimony. Plaintiff’s counsel claim that they were taken by surprise by the testimony given upon cross-examination. According to plaintiff’s testimony, he was using due diligence to get off the track of the approaching car, and to give the car the right of way. It is undoubtedly true that Mr. Hannon was in better position to observe the manner of the accident and the speed of the car than the plaintiff, who testified that, as soon as he heard the bell, he attempted to put himself in a place of safety; but this did not make his testimony conclusive. We think the question of plaintiff’s negligence should have been submitted to the jury. 2. Plaintiff’s counsel subjected Mr. Hannon to a rigid redirect examination, and asked him if he had not made certain contradictory statements to certain persons, which he denied. They then sought to show these contradictory statements, which were excluded by the court. If, under any circumstances, a party litigant may, in a civil action, impeach his own witness, whom he is not obliged to call, by proving contradictory statements, this case is not one to justify the practice. The witness was not asked upon [242] direct examination in which direction plaintiff was guiding his horse. On cross-examination he testified that he was pulling the horse’s head to the right instead of to the left, as he should have done. A party will not be permitted to impeach his own witness by showing contradictory statements made by him because his testimony on cross-examination is not such as he expected the witness to give. We settled this question in criminal cases in People v. Elco, 131 Mich. 519 (91 N. W. 755), where the people are obliged to call the witnesses. The rule has not been extended by this court in civil cases, when a party is under no obligation to call the witness. Counsel cite Darling v. Thompson, 108 Mich. 218 (65 N. W. 754), and Smith v. Smith, Sturgeon & Co., 125 Mich. 234 (84 N. W. 144), as supporting their contention. Counsel are in error. These cases and other similar ones hold only that the party calling the witness is not bound by his testimony, if the testimony of other witnesses shows a different state of facts. 3. Defendant contends that there was no evidence of negligence on the part of the defendant, and that for this reason the verdict should be sustained. If the sole claim of negligence had been that the defendant propelled its car at a high, dangerous, and negligent rate of speed, the court might have been justified in holding that no negligence in this respect was shown. But the other negligence alleged was the failure to reasonably check and control the speed of the car. The care to be used in keeping a car under control depends upon the circumstances of each particular case, dreater care would be required in some cases than in others. The car, heavily loaded, was approaching the plaintiff upon down grade. Plaintiff was entitled'to reasonable time, by the exercise of reasonable effort, to drive his wagon out of reach of the approaching car. If plaintiff was exercising due care, which must be the first question to be determined by the jury, we think that the question of defendant’s negligence belonged to the jury. Rouse v. Detroit Electric Ry., 128 Mich. 153 [243] (87 N. W. 68); Hicks v. Citizens’ Ry. Co., 25 L. R. A. 508 (s. c., 124 Mo. 115, 27 S. W. 542). Judgment reversed, and new trial ordered. The other Justices concurred.