Atchison v. Steam Boat "Dr. Franklin"

Napton, J., delivered the opinion of the court. The first error assigned in this case, is the refusal of instruction No. 4, and giving the instruction asked by the plaintiffs. We have not been able to perceive that instruction No. 4 affects any legal principle important to the defendant’s rights, different from or additional to what had already been given in previous instructions. The jury were told that if the Amaranth was in fault, wholly or partially, or if both boats were in fault, or if neither were, and the collision was the result of mere accident, the plaintiffs could not recover. Instruction No. 4 applies to an accidental collision, and this had already been mentioned in previous instructions, though not in precisely the same form of expression. Indeed that part of instruction No. 4, which speaks of the motives of those who controlled the Franklin, is positively objectionable and calculated to mislead. The instruction which the court gave in relation to damages was correct. It is fairly to be implied from its language, that the price paid for repairing the injury done to the Amaranth was a reasonable one, and in thei absence of all proof on that subject, the jury was authorized so to consider it. Had the point been really a controverted one, and the defendant desired more specific instructions, the court would no doubt have given them. The principle point relied on in this case, is the refusal of the court to permit Berry to be recalled, after he had been dismissed from the witness stand. In general, when a witness has been examined in chief, cross examined, re-examined by the party calling him, and finally dismissed, it lies very much in the sound discretion of the court trying the case, whether such witness can again be recalled. It is quite obvious, upon reason and authority, that the circumstances peculiar to each case, [70] must to some extent control this discretion. Here the witness Berry' had been examined in relation to the causes of the collision between the Amaranth and the Franklin, and he had given his own version of the occurrence, when the plaintiffs directed his attention to a supposed conversation between him and one Atchison, in which his statements were thought to conflict essentially with the testimony he had just given. His attention was directed to the time, place and circumstances of the conversation. He denied positively that any such conversation had happened. Upon re-examination by the defendant, he persisted in this denial. Atchison was then called, and testified to the conversation alluded to, and his statement directly conflicted witl\ that of Berry. The defendant then offered to recall Berry “for the purpose of contradicting S. Atchison and re-affirming what said Berry had already stated but the court refused to permit him to be recalled. It is manifest that in determining how far this court acted discreetly in the exclusion of this witness Berry, it is very important to consider the objects proposed by the party desiring the testimony. Under the circumstances, I apprehend the witness Berry would readily have been permitted to explain his previous statements, if he had desired to do self any mistake had been suggested, or any clue discovered by which there was a. probability of reconciling the two statements of Atchison and Berry, the court would hardly have hesitated to let in such testimony, at whatever stage of the trial it may have been offered. But there was no such object either avowed or intended. The avowed object of introducing Berry the second time, was to contradict Atchison and re-affirm his former statement. This was unnecessary — it would tend to endless repetition. The record in this case moreover shows, that the avowed object of introducing Berry the second time was the one mentioned, and the only one. Upon the motion for a new trial, the affidavit of Berry is taken, and is merely a reiteration of his previous statements. We can hardly presume that the witness could have communicated to the jury any ' thing more than what he deliberately embodies in his written affidavit. The attempt to contradict a portion of the deposition of Hight, by proving that he had made contradictory statements in the presence of the witness, was properly prohibited by the court. No foundation was laid for the introduction of such testimony. The fact that' Hight’s testimony was in the form of a deposition, and he himself had gone to California, whilst it shows the impracticability of calling his attention such portions of his evidence as are proposed to be contradicted, and thus [71] laying, the foundation for attacking his veracity, also deprives him of all Opportunity of explaining or confirming his own st atements. In this condition of things, there would be no propriety in relaxing the rule. The affidavit of surprise made by the agent of the defendant, or the motion for a new trial, affords no inducement for the interference of this court. The affidavit contains nothing more than what might be said in almost every case by the losing party, to wit: that his adversary’s testimony was different from what he anticipated. Besides it did not appear that any different character of testimony was likely to be produced upon a subsequent trial, unless it consisted in attacks upon the general credibility of the witness Berry, and for such purpose a new trial is never granted. , Judgment affirmed.