Baltimore City Passenger Railway Co. v. Knee

Page, J., delivered the opinion of the Court. The narr. alleges that John Knee was a passenger on one of the defendant’s cars ; that near the intersection of Chase and Gay streets the car was stopped on a signal from the conductor, and that Knee, intending to leave it, “ arose from his seat and moved toward the usual place of exit, * * but before he could reach the highway * * the car was suddenly started forward, whereby * * he was thrown to the ground ” and injured. At the trial the plaintiff (having himself given an account of the accident), in support of these allegations, called as a witness on his behalf, one Lewis Winters, who testified that he was about eight or ten feet from the car when Knee was hurt; that he saw the car stop and a couple of women get off, then a couple of gentlemen, and that one of these made a step-, and as he did so the car “ made a jolt ” and he fell; that he caught by the car and was dragged, and that when he came to the sidewalk witness saw his hand was bleeding. The defendant, to rebut this statement, offered several witnesses; two of whom swore positively that Winters was not present at the scene of the accident.

To corroborate Winters, the plaintiff called Robert O’Kane and offered to prove by him that Winters, two or three days after the accident, told witness about having seen the accident; he (Winters) said he saw a man hurt at the corner of Broadway and Chase ; he did not say who the man was; he did not mention any name ; he just told me he had seen the man fall and get hurt; he didn’t tell me any of the details.” The counsel for the defendant objected to the admission of this evidence, but the Court permitted it to go to the jury. This constitutes the first exception. Ever since the case of King v. Parker, 3 Doug. 242 , it is well settled, according to the weight of authority, that “ what a witness said not upon oath, will not be admitted to confirm what he said upon oath.” Robb v. Hackley, 23 Wend. 55 ; Conrad v. Griffey, 11 Howard, 490 . But, though this is the general rule, the text-writers agree that ⁷⁹ most Courts have held that there “ may be many cases where, under special circumstances, it possibly might be admissible ; as, for instance, in contradiction of evidence tending to show that the account was a fabrication of a late date, ■and where, consequently, it becomes material to show that the same account had been given before its ultimate effect and operation, arising from a change of circumstances, could have been foreseen.” 2 Starkie on Ev., marginal page, 187 ; 1 Wharton on Ev., sec. 570; Rapalje’s Law of Witnesses, sec. 224 ; Taylor’s Ev., sec. 1330.

This exception to the general rule seems to rest upon the theory that the witness, having been impeached by evidence showing that he has testified under corrupt motives,, or has fabricated his testimony to meet the exigencies of the case, the fact that he uttered the same statement, shortly after the transaction, and before the motive to fabricate existed, tends to support not only his integrity, but also the accuracy of his recollection. To bring a case within this exception it must appear that the conversation occurred soon after the transaction, is ■consistent with the statements made on oath, and contains such fact or facts pertinent to the issues involved, as reasonably furnish to the jury some test of the witnesses’ integrity and accuracy of recollection. And this is the rule that obtains in Maryland. In the case of Maitland v. The Citizens’ Bank, 40 Md. 540 , the rule and its application is stated as follows : “ The evidence admitted under it is not admitted to prove or disprove any fact involved in the issue on trial, but simply to corroborate or support the credibility of the witnesses; * * to show that the witness has been consistent in giving the same narrative of fact; that his •former statements, when'without interest or motive to falsify the truth, consist with his sworn testimony given on trial; and thus to some extent remove suspicion that his testimony has been fabricated to meet the emergencies of the case, or that his recollection has varied, and is therefore not to be relied on. * * The former unsworn statements, as compared with his testimony on trial, should furnish some test ⁸⁰ of the witness’s recollections, as well as of his integrity.” This is the extent of the rule here, whatever it may be elsewhere.

It is an exception to the general rule, and must “not be extended, but applied strictly.” (Ibid) 559; Washington F. Ins. Co. v. Davison, 30 Md. 104 ; McAleer v. Horsey, 35 Md. 464 . Now what is this case ? The witness, Winters, had sworn that he was present at the happening of the accident, and gave a narrative of all the facts as he saw them.

The defendant produced witnesses who swore he was not present. This went to .a substantial impeachment of Winters. 30 Md. 104 . To sustain him the plaintiff offered to prove that two days after the accident Winters told O’Kane that he was present and saw a man hurt at the corner of Broadway and Chase streets, but told him nothing more. Nothing was said about the details of the accident.

The issue in this case was, how was the plaintiff injured? The fact óf