Simms v. Forbes

Cox,, J., delivered the opinion of the court. The charges requested for defendant below (appellant here), which proceed upon the assumption that the burden of proof [417] was on plaintiff to show freedom from contributory negligence, were correctly refused. This is not tbe law. Contributory negligence is an affirmative defense. The burden of proof is upon the defendant, except in those cases where the declaration alleges facts which prima facie show contributory negligence, but coupled with matter in avoidance, and except where plaintiff’s evidence discloses contributory negligence. Wigmore on Evidence, sec. 2507; Hickman v. K. C. R. Co., 66 Miss., 156 (5 South. Rep., 225). The plaintiff, after having testified in her own behalf, was recalled and questioned touching a conversation with W. J. Foster, a witness for defendant, some days before trial, at plaintiff’s home. Foster was the clerk in defendant's store who was showing plaintiff the bookcases at the time she fell into the elevator opening, and had testified that he called plaintiff’s attention to the opening a few moments before she fell. Plaintiff was asked by her counsel: “When Mr. Foster came down to see you, as a part of the conversation he had with you, did you say to him that you heard that they intended to say that you were warned about that place?” This was objected to, and objection sustained. She was then asked: “As a part of that conversation, did you say to him that you had not been warned?” This question was objected to, objection overruled, and defendant excepted. Plaintiff replied: “I looked him right in the face most impressively, and said it very slowly, ‘I hear your people say that I was warned; I wasn’t warned;’ and he said nothing.” There is no ground upon which this testimony was admissible. It is clearly nothing but hearsay, and not within any of the exceptions to the rule which excludes hearsay evidence. It is true that when Foster was on the stand a predicate was laid for contradicting him upon this point. But the rule is well established that a witness may not, on cross-examination, be questioned as to collateral and irrelevant matters with a view to self-contradiction of his answer. In such cases the cross-examiner is bound by his answer. The [418] rule against bear say would be of but little value if it could be evaded by the transparent device of introducing it in contradiction of the adversary’s witness upon collateral matters. Unless a party has the right to offer a conversation or statement directly, he cannot get it before the jury merely by way of contradicting a witness on matters brought out on cross-examination. Again, plaintiff was ashed: “When Mr. Foster came down to see you, did he make a statement to you in which he said, ‘I take, great blame for that accident myself?’ ” To this she replied: “I cannot say whether he did say that exactly, but he said, ‘1 take great blame,’ or he said, ‘I blame myself for the accident;’ and my reply was: ‘Somebody was to be blamed, certainly.’ ” Defendant moved to strike out the last question and answer. ' Motion was overruled, and exception taken. The last answer was obnoxious to the same objection as the former. It was mere hearsay. Plaintiff could not have availed of it as a part of her case, nor could she have shown it in evidence for any purpose, independently of the self-contradiction of Foster. Such being the case, it was not available in any form or for any purpose. Wigmore on Evidence, sec. 1020; V. & M. R. Co. v. McGowan, 62 Miss., 698 (52 Am. St. Rep., 205); Williams v. State, 13 Miss., 821 (19 South. Rep., 826). This evidence must have been highly prejudicial to defendant. For the error of the court in admitting it, the judgment must be reversed. Reversed and remanded.