American Stores Co. v. Herman

Offutt, J., delivered the opinion of the Court. This action was instituted in the Baltimore City Court by Violet K. Herman against the American Stores. Company and the United Railways and Electric Company of Baltimore, to recover compensation for injuries which she sustained as a result of a collision between a car of the railways company, on which she was a passenger, and a truck owned and operated by the American Stores Company, which occurred on June 13th, 1932, at the intersection of Madison Avenue and Presstman Street in the City of Baltimore. The plaintiff joined issue on the defendants’ general issue pleas, the case was tried before the court and a jury, and at the conclusion of the trial the jury returned a verdict against both defendants.

From a judgment on that verdict, the American Stores Company appealed. There are four exceptions in the record, of which the fourth relates to the court’s lulling on the prayers, and the others to its rulings on questions of evidence. These exceptions will be considered in their order. The first exception relates to the refusal of the court to allow the following question on cross-examination of a witness for the plaintiff: “Q. Did you hear him say that your car passed the south-bound car about four or five houses north of the building line ?

A. Yes, sir. Q. Is that correct ?” In asking the witness to say whether the statement was correct, he was in effect asked to say whether the witness who gave it testified falsely. The question was improper because one witness cannot be asked to characterize the testimony of another (Missouri, K. & T. R. Co. v. Lycan, ³¹⁵ 57 Kan. 635 , 47 P. 526, 528 ), since that is exclusively the function of the jury, William J. Redmond, a witness for the American Stores Company, having testified that he had seen sparks flying from the rails when the street car was about “fifteen feet from the building line,” at the corner of Presstman Street and Madison Avenue, was asked: “You mean fifteen feet north of the building line?” and replied: “Yes, sir; he had no passengers to take on and he didn’t discharge or receive any at that corner, and I don’t think that he was going to make any stop. In fact, I know he was not going to make any stops, there didn’t any one get off at that corner.

If he was going to make a stop at that corner he would have been running slow enough to have stopped on the corner and not down there.” Counsel for the United Railways and Electric Company moved to “strike that out.” The motion was granted, and that ruling is the subject of the second exception. So much of the answer as located the car was proper. The remainder was made up of argument, inference, and opinion, and upon proper motion should have been stricken out. The motion to strike involved in the exception was too general, and included good as well as bad evidence, and should have been overruled (Jones on Evidence, sec. 895), but we do not consider the error reversible, since the evidence was cumulative, and the question itself was. too general, in that it failed to specify whether it referred to the north or the south building line.

In the cross-examination of Redmond by counsel for the United Railways and Electric Company, he was asked if he had not after the accident signed a paper stating facts at variance with those to which he had testified. He admitted signing the paper, and it was offered in evidence without objection. On redirect examination by counsel for the appellant he was. shown what purported to- be an unsigned transcript of a statement made by him at or about the- same time, which tended in some degree to corroborate his testimony and to contradict his signed statement. He testified that the transcript correctly recorded what he had said, and ³¹⁶ it was then offered in evidence by appellant, apparently for the purpose of rehabilitating the witness.

Oounsel for the United Railways and Electric Company objected, and the objection was sustained. That ruling is the subject of the third exception. The rule supported by the great weight of authority ,is that, where a witness “is discredited by proof of contradictory statements at different times, it is no restoration of his credit to show that at still other times he has made statements in accordance with his testimony” (Jones on Evidence, 870; 40 Cyc. 2787), but the rule in Maryland is otherwise. In this state, from a very early period, it has been held that such evidence was admissible.

Cooke v. Giurlis, 6 H. & J. 93 . But, while that case has been followed and approved in a long line of cases, reviewed by Judge Pattison, speaking for this court, in Cross v. State, 118 Md. 669 , 86 A. 223 , it was held in Maitland v. Citizens' Nat. Bank, 40 Md. 540, 559 , that the rule recognized in this state should not be extended but. applied strictly, a statement which was adopted and approved in Lanasa v. State, 109 Md. 620 , 71 A. 1058 , and in City Pass. Ry.

Co. v. Knee, 83 Md. 77 , 34 A. 252 . Consistently with the principle announced in Maitland v. Bank, supra, it was held in Lanasa v. Stale, supra, that a corroborating statement made thirty-nine days after the act was inadmissible; in City Pass. Ry. Co. v. Knee, supra, where a witness had testified to the details of an accident at which he swore he was present, and was impeached by evidence tending to show that he was not present, and the plaintiff, to restore his credit, offered to prove that he had said to a third person shortly after the accident that he had been present and had seen the .accident, but had given none of the details, it was held that the offer was properly refused, the court stating that: “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 in City Pass.

Ry. Co. v. Cooney, 87 Md. 261, 272 , 39 A. 859, 863 , the court said: “The action of the court on the offer to ³¹⁷ prove by William Dickell what be said to people on the ear about the accident, as embraced in the seventh exception, would seem to require no consideration by us, as two witnesses were afterwards permitted to state what he did say. That character of evidence, for the purpose of corroborating a witness who has been impeached, was considered in City Pass. Ry.

Co. v. Knee, 83 Md. 77 , 31 A. 252 , where the authorities are reviewed; but the cases in this state do not go to the extent of holding that the impeached witness can himself testify to what he said on other occasions, in order to corroborate his testimony given at the trial.” The statement last quoted was obviously dicta, but is nevertheless consistent with sound reason. To permit a witness who, hailng sworn to one thing on the witness stand, admitted signing a statement giving a different version of the same facts, to corroborate himself by proving by his own testimony his own statements in support of it, would be a mere juggling with the truth, more likely to bring the forensic administration of justice into disrepute than to rehabilitate the witness. Apart from that consideration, the transcript, which was offered as a whole, contained matters which were not found either in the sworn testimony of the witness or his signed statement, some of which were inadmissible under any theory, and for that reason also the offer was properly refused. Appellant also contends that it was entitled to have the statement in evidence to explain why it called the witness.

I>nt the rule invoked applies only where a party is induced to call a witness because, as a result of previous statements made by the witness to the party calling him, or to counsel for such party, inconsistent with his testimony, he was led to believe that the testimony of the witness would be different from what it proved to be. The reason for the rule is that a party should not be held to accredit a witness who, while in fact hostile, has deceitfully led the party calling him to believe that his testimony would be favorable to such party when in fact the witness knew it would be adverse. 40 Cyc. 2693. In such a case, the party calling the witness is permitted to ³¹⁸ offer evidence, not to impeach him, but to show why he was called at all. Washington, B. & A. R. R. v. Faulkner, 137 Md. 451 , 112 A. 820 .

That rule is not applicable here, for it does not appear that Redmond made any statement to appellant or its counsel inconsistent with his testimony. No point was made in this court of the refusal of the appellant’s demurrer prayers, and it becomes unnecessary to refer to' them further than to say that a careful examination of the evidence shows no error in the rulings as to them. The objection to the rulings in reference to the plaintiff’s second and third prayers and the third and fourth prayers of the United Railways and Electric Company were not argued in this court, and they, too', will be taken as abandoned. Rule 39, sec. 4, Rules of the Court of Appeals.

But, apart from the rulings on evidence, the appeal turns upon “the granting of certain prayers offered by the plaintiff, apd the refusal of one prayer offered by the defendant.” Appellant’s brief, p. 1. And, in stating the questions presented by the appeal, appellant refers only to the first and fourth prayers of the plaintiff and the third prayer of the defendant (appellant here). So that in dealing with the rulings op. the prayers we will consider only those three specified. Id.

There was in the case testimony tending to prove these facts, which are material to a consideration of these prayers. The collision occurred at the .intersection of Madison Avenue, running northwest and southeast, and Presstman Street, running northeast and southwest, in Baltimore City. Presstman Street approaches the intersection from the west at an ascending grade of one per cent., and Madison Avenue approaches it from the north at a descending grade of two and one-half per cent. At that point both streets are thirty-eight feet ten inches wide from curb to curb.

At the time of the accident, the street car was south-bound on Madison Avenue, and the truck was proceeding east on Presstman Street. The sidewalks on Madison Avenue are fourteen feet six inches wide, and on Presstman Street twelve feet six inches. These ³¹⁹ facts, from their nature, are undisputed, but there are few others entitled to the same credence. There was evidence tending to show that immediately before and at the time of the accident the street