Cole v. Lake Shore & Michigan Southern Railway Co.

54 N.W. 638, 95 Mich. 77, 1893 Mich. LEXIS 585

• Court: Michigan Supreme Court
• Decided: March 10, 1893
• Status: Published

Opinion

G-rant, J.

The liability of the defendant in this case has been determined by former adjudications of this Court. Cross v. Railway Co., 69 Mich. 363; Cole v. Railway Co., 81 Id. 156. 'A full statement of the facts involved will there be found, rendering any further statement here unnecessary.¹ The only errors assigned relate to the admission of testimony and the charge of the court. Several of these were disposed of in the former opinion, and need not now be mentioned.

1. Plaintiff's physician had testified fully in regard to her condition, the disease from which- she suffered, and its probable cause. He was then asked to state from his experience, practice, and observation what percentage of persons in her condition recover their health. The question had a direct bearing upon the permanency of the disease claimed to have resulted from her injury, and was competent.

2. Defendant introduced a record in the Hnited States court of the arrest and conviction of plaintiff for a.violation of the pension law, she being then a pensioner.- This evidence was admissible to affect her credibility as a witness. She offered no testimony explanatory of the crime. Defendant then offered to show what she testified to in regard to that charge on the examination before the Hnited State? commissioner. The testimony was properly excluded. It has even been held that it is not competent for the party calling the witness whose credit has been impeached by the record of conviction to give evidence explanatory of the conviction, and in favor of the innocence of the witness. Gardner v. Bartholomew, 40 Barb. 325. Neither did this testimony have any tendency to prove a conspiracy between plaintiff and Mr. Cross to defraud the defendant. It follows that it was not competent to cross-examine plaintiff in regard to this crime, and then to impeach her credit by showing that she had made statements contradictory to those made on such cross-examination.

3. Defendant offered testimony of a physician, who had known plaintiff for some years, that, in his opinion, she was “shamming before the jury.” This was properly excluded. A physician is no better qualified to give an opinion upon that subject than are jurors, avIio observe the actions and appearance of the Avitness upon the stand and in the court-room.

4. The circumstances under which plaintiff was absent at the first trial are - fully stated in the former opinion. The learned circuit judge very fully and fairly instructed the jury that her absence Avas a circumstance to be considered, and, if not explained, must be taken as a circumstance against her, and as indicating that her evidence would have tended to Aveaken her case; that it was her duty to be present and give testimony in her own behalf, if physically and mentally able to do so, and that, if she-was absent Avhen able to be present, the jury might consider that as evidence tending to impeach the good faith of her claim. This charge Avas clear and explicit, and the court very properly refused the request of the defendant, upon this subject.¹

5 The court instructed the jury that, if they found that. Mrs. Cole had testified falsely as to any material fact in the case, then they had the right to entirely disregard her testimony, and that it might be their duty to so disregard it as to material facts, unless it appeared from other testimony that her testimony was true. Defendant's counsel claim the rule to be that in such case the jury must disregard the testimony, unless it is supported by other evidence. The instruction given was correct. .

We 'find no error in the record, and the judgment is . affirmed.

The other Justices concurred.

1 The eases grew out of the same accident.

1 The request was as follows:

“ Mrs. Cole knew, and she is the only person who did know, whether the condition AAdiich Dr. Whitbeck describes her to have been in was occasioned by an injury received by falling into the hole, as described by herself and the Avitness Cross. She alone could give positive testimony upon that point; and if she purposely stayed away from the former trial, and pui-posely omitted to have her deposition taken, then the presumption of law is that if she had testified her testimony would have been unfavorable to her case.”