Johnson v. Union Pacific Railroad

100 P. 390, 35 Utah 285, 1909 Utah LEXIS 26

• Court: Utah Supreme Court
• Decided: March 13, 1909
• Docket: No. 1973
• Status: Published

Opinion

McCARTY, J.

(after stating tbe facts as above).

The first assignment of error discussed by counsel for api-pellant relates to tbe admission in evidence, over their objection, of certain photographs of tbe derailed ears and of tbe railroad tracks and grade at tbe point where tbe wreck occurred. It is a well-settled rule that photographic views, when proved to be correct representations of 1 persons, objects, or localities which are subject-matters of inquiry in an action or proceeding, are admissible in evidence to aid tbe court or jury to apply tbe facts proved to tbe particular case. (Dederichs v. S. L. Ry. Co., 14 Utah 137, 46 Pac. 656, 35 L. R. A. 802; State v. McCoy, 15 Utah 136, 49 Pac. 420; Kansas City, etc., R. R. Co. v. Smith, 90 Ala. 25, 8 South. 43, 24 Am. St. Rep. 753; 2 Jones on Evidence, 597; 22 Am. and Eng. Ency. Law (2d Ed.), 773.) Tbe photographs in this ease were taken about an hour after tbe wreck occurred. In tbe meantime a gang of workmen bad commenced clearing away tbe debris, and piling up tbe ties that were tom loose from tbe roadbed by the derailed cars. It is contended that tbe photographs were incompetent, and should have been excluded, because they were taken after “certain changes bad been made by reason of these workmen commencing to pick up tbe wreck and clear up tbe track.” The photographs were made a part of tbe bill of exceptions. Among other things, they show a pile of broken ties on tbe side of tbe railroad grade where the accident occurred. Tbe record shows that tbe piling of these ties was tbe only change made in tbe wreckage up to tbe time the photographs were taken. It is conceded that these ties were taken from thé wreck, and it is also 2 conceded that they were broken and tom loose from the roadbed -by the derailed cars. We think the photographs were properly admitted in evidence. Furthermore, one of the appellant’s principal witnesses, in describing the condition that the track was in immediately after the wreck, testified that: “It was torn up. The ties were broken and bunched.” It will therefore be observed that the photographic views objected to illustrated a condition or feature of the wreck over which there is no controversy. In fact the testimony of the witnesses, considered separate and apart from the photographic views, shows the ties to have been in a much worse condition than the photographic views would indicate.. The photographs do not show nor illustrate the decayed and unsound condition of the ties. Though it were conceded that, as an abstract proposition of 3 law, the admission in evidence of the photographic views of the piles of ties referred to was error, we would be compelled, in the face of this record, to hold that it was harmless error.

Nor did the court err in permitting Potter and Astle, two of respondent’s witnesses, to testify as to his condition since the accident'compared with what it was before the accident. The record shows that P'otter had known respondent for about three years, and that Astle had known him for more than twenty years, before the accident. They assisted in taking him from the wrecked car, and in earing for him during the rest of his journey homeward. They occasionally met and talked with respondent during the two years intervening between the time of his arrival home and the trial of the case. Potter testified that before the accident respondent’s voice was “ordinarythat it was “clear,” and since the accident it has been husky and weak. Astle testified that before he was injured respondent appeared to be a healthy man, and that he had never known him to have sickness of any kind; that his voice was clear and strong, and since tbe accident “it seems husky,” and is “consider-' ably weaker.” The fo-llówing is a fair sample of the questions asked these witnesses, and their answers, to which objections were made and exceptions noted: “Q. How did he appear then [several weeks after the accident] as compared with the way he appeared before the accident ? A. Hé hadn’t his voice — showed the results of what he had been through.” It is urged that these witnesses were nonexperts; that they were not qualified to express an opinion respecting the state of respondent’s health before the accident as compared to what it has been since. This evidence was clearly admissible. The authorities uniformly hold that witnesses who are not experts are competent to testify 4 as to whether a person with whom they are acquainted, and whose appearance and conduct they have observed, is in good or bad health, has a strong or weak voice. In 17 Cyc. 88, it is said:

“Such an observer may also state a change in apparent condition, whether the change is from sickness to health, or from health to sickness, or from had to worse, or from worse to better. He may also infer and state that a person’s ability to help himself, or his faculties, or the use of his limbs, or other parts of his body, or his earning capacity, has or has not been impaired.”

Many cases are cited in the note which fully support the foregoing propositions. Further, it is a well-settled rule that where a witness details the facts upon which he bases his opinion, the error, if any, is usually harmless, and especially so where, as in this case, the evidence 5 shows that the jury must have reached the same conclusion as the witness. (17 Cyc. 60; Davis v. O. S. L. R. Co., 31 Utah 307, 88 Pac. 2.)

Fourteen of plaintiff’s witnesses, who were passengers on the train at the time of the accident, testified as to> the rate of speed at which the train was going just prior to and at the time the cars were derailed, and they variously estimated the speed to be from thirty to fifty miles an hour. Two witnesses for defendant estimated the speed to be from twenty-three to twenty-five miles per hour. Objections were made and exceptions taken to tbe testimony of three of plaintiff’s witnesses on this point, on the. ground that they were not shown to be qualified to express an 'opinion as to the rate of speed at which the train was running. One of them estimated the speed to be from forty-five to fifty, another at thirty miles, and the other from thirty to thirty-five miles per hour. This evidence was clearly admissible. It in no sense involved a question of science requiring special learning or skill' on the part of the witnesses to determine, but related to a matter that is within- the common knowledge of mankind generally. And the authorities seem to hold that a person of average intelligence, who has observed a movingf train on a given occasion, is competent to express an opinion, if he has one, as to the rate of speed at 6 which it was traveling. Of course the weight to be given the opinion of a witness on matters of this kind will depend upon his. intelligence, learning, experience, and the degree of attention he gave the particular matter which is the subject of inquiry. The following authorities illustrate and uphold this general doctrine: Chipman v. Union Pacific R. R. Co., 12 Utah 68, 41 Pac. 562; Chicago, B. & Q. v. Gunderson, 174 Ill. 495, 51 N. E. 708; Johnson v. Oakland Ry. Co., 127 Cal. 608, 60 Pac. 170; Thomas v. Railway Co., 86 Mich. 496, 49 N. W. 547; Walsh v. Railway Co., 102 Mo. 582, 14 S. W. 873, 15 S. W. 757; Ward v. Railway Co., 85 Wis. 601, 55 N. W. 771; 17 Cyc. 106, and cases cited in note.

Furthermore, the testimony of eleven, of plaintiff’s witnesses who testified as to the rate of speed at which the train was traveling is not assigned as error. Tw'o of these witnesses testified that the speed of the train was about fifty miles per hour; two estimated it to be between forty and fifty miles; two from forty to forty-five; and three at about forty miles an horn’. Conceding, for the sake of argument, that the testimony objected to should have been excluded, the admission of the foregoing evidence without ob- 7 jection rendered it harmless. (17 Cyc., pp. 61, 62; Chipman v. U. P. Ry. Co., supra.) Besides, we think the facts and circumstances, as detailed by Arthur dung, one of defendant’s principal witnesses; show conclusively that the train, at the time the cars were derailed, was traveling at a high rate of speed, dung was an experienced railroad man. The record shows that for twenty-three years hé had been connected with the construction department of.first.one, and then another, of .three different railroad companies, and at the time of the accident he was-, and for three years prior thereto had been, ro-admaster of this particular division of defendant’s road; that he was riding on this particular train at the time the wreck in question occurred. He testified that immediately after the -wreck he went back and examined the track to the point where the ears -were derailed, and fo-und. that after they had left the track the train proceeded' mora than one thousand two hundred feet before it was* brought to a standstill; that it was nine hundred and forty-three fee-11 from the point of derailment to where the car Kara overturned, and from that point to where the car Polynesia broke looso from the train was one hundred feet, and from the Polynesia to the Amsterdam, which was the rear ear of -what was left of the train when it stopped', was about- one hundred and sixty-five feet; that it was almost a minute from the time the cars were derailed until the train was stopped. Another witness for appellant testified that immediately after the cars left the track the air brakes were “applied very severely.” Therefore, according to the testimony introduced on behalf of defendant, the average rate of speed at which this train traveled from the place of derailment to where it stopped was about fifteen miles an hour. That is, the train, with the throttle of the engine closed, the air brakes applied, two Pullman cars completely derailed, and the two rear wheels of another ear off the track and the great impediment which the tearing up of the track for two hundred feet by the derailed cars must have been to its speed, proceeded. 8 nearly a quarter of a mile before it could be stopped. We are therefore of tbe opinion that there is no real or substantial conflict in the evidence as to the speed of the train at the time the cars left the track.

Appellant’s next contention is that the court erred in permitting the witness Gallagher to testify to the speed limit of trains at the time of the accident over that portion of the road where the accident' occurred. Gallagher was section foreman over the portion of the road where the accident occurred, and for several days before the accident had been engaged in repairing the road at that point. He testified that he obtained his information respecting the speed limit of trains over this particular part of the road, which was fixed at fifteen miles an hour, in a letter written to him by his superior officer; that on the 1st day of August, 1905 (nearly a year before the trial of the case), at Junction City, Kan., he turned over all the papers to his successor, including the letter in question, and that he had not seen the letter since, and did not know where it was. Objections were made to the testimony respecting the speed of the trains on the grounds that it was immaterial, incompetent, and not the best evidence. This assignment is without merit. The letter related to a collateral matter which was no paid of the subject-matter of the action. That is, neither the letter, nor the matter to which it referred, was directly involved in the case; nor did it relate to a matter which the law requires to be in writing. Therefore it does not fall within the general rule which holds that before parol evidence of the contents 9,10 of a written instrument can be received, it must be shown that the writing is lost, destroyed, or under, the Control of the party against whom the evidence is offered, and that a demand was made upon such party to produce the writing in court to be read in evidence, and that he refused to comply with the demand.

The ease of Polly v. McCall, 37 Ala. 20, was an action to recover damages for the overflowing of plaintiffs land, and proof of a written notice from plaintiff to defendant, requesting an abatement of the ditch and levee by which the overflow was caused, was offered and admitted over defendant’s objection. On appeal the Supreme Court said: “Neither did the court err in admitting oral testimony of the written notice served in this case. This fact was collateral to the issue; was not necessary to the plaintiff’s success in the suit, either in consequence of any requirement of the law or of the pleadings in the cause.” The court held that it was within the exception to the general rule in regard to the proof of writings. hicEelvey, in his work on Evidence (page 344) says: “Where the writing is not in issue, but merely collateral to it, it is held that the rule has no application, and parol evidence may be given, even though it covers the contents of the writing.” So in 1 Greenl. on Ev., section 86, the author says: “Where, however, the record or document appointed by law is not part of the fact to be proved, but is merely a collateral or subsequent memorial of the fact, such as the registry of marriages and births, and the like, it has not this exclusive character, but any other legal proof is admitted.” See, also, sections 89, 90. In 17 Cyc. 469, the rule is stated as follows: “Evidence relating to a matter which does not form 'the' foundation of the cause, but is collateral to the issue, does not properly fall within the best evidence rule, and, although secondary in its character, cannot beexcluded on the ground that primary evidence is obtainable.” In 2 Ency. Ev. 285, it is said: “Where the contents of a writing come collaterally in question, such writing need not be produced, but the contents may be established by parol evidence” — citing many cases.

There is another reason why this assignment of error must be overruled. It was shown that the letter in question was not within the jurisdiction of the court, and the rule, as declared by the great weight of authority, is that when a writing which is necessary in evidence is traced to 11 the hands of a party not within the state, secondary evidence, without further showing, may be given to prove the contents of such writing. This court so held in the case of Dwyer v. Salt Lake City, 14 Utah 339, 47 Pac. 311. And the doctrine as announced in that case was reaffirmed in McCollom v. Southern Pacific Company, 31 Utah 494, 88 Pac. 663. The.following authorities also fully support the rule: 17 Cyc. pp. 529, 530; Gordon v. Searing, 8 Cal. 50; Zellerbach v. Allenbergm, 99 Cal. 73, 33 Pac. 786; Manning v. Maroney, 87 Ala. 563, 6 South. 343, 13 Am. St. Rep. 67; Knickerbocker v. Wilcox, 83 Mich. 200, 47 N. W. 123, 21 Am. St. Rep. 595; Burton v. Driggs, 20 Wall. 134, 22 L. Ed. 299; Stevens v. Miles, 142 Mass. 571, 8 N. E. 426; Smith v. Nat. Bank, 82 Tex. 368, 17 S. W. 779. Nor can it successfully be urged that the objection was good on the ground of the immateriality of the evidence, as it 12 tended to show that the officers and agents of appellant had notice of the alleged unsafe condition of this particular piece of trade, and that it was unsafe to operate trains over it at a greater rate of speed than fifteen miles per hour. When the testimony was offered, counsel for the respondent announced to the court, and in the presence and in the hearing of the jury, that this was the only purpose for which it was offered.

One of the respondent’s attorneys, in making his opening statement to the jury, said: “Eifty-four out of fifty-six of the persons in this party were injured in the wreck, and testimony is before the jury that settlement was made with all but two of the persons injured. By thus settling with all those who were injured except two, the company has admitted its liability for the damage done by this wreck more than fifty times.” It is strenuously urged, on behalf of appellant, that these remarks constitute reversible error. On cross-examination of one of respondent’s witnesses counsel for appellant elicited the following testimony: “I met Dr. Perkins and Mr. Manchester, claim agent for the railroad, in Providence, R. I., about six weeks after the accident. Q. Tou remember the mission they were on? Tou were taken into their councils? A. Tes; I understood they were down to try and make settlement with some of those who had not been settled with. Q. Tes. There were only three that hadn’t been adjusted ? A. I do not know. Q. Don’t you remember that, right at the time of the wreck, they were all adjusted except three or four? A. There were very few; yes, sir.” The Dr. Perkins referred to was called as a witness in behalf of the appellant, and he testified, in part, as follows: “Q. Do you know whether or not, before this party left Junction City, they were all, or what portion of them were settled ? A. Some of the settlements were made going down on the train. . . . Some were made in Junction City, and some on the train after leaving Junction City. Q. Do you know how many were not settled with, if any, at the time of the wreck ? A. There were a few that were not settled. There was Ur. Johnson and his wife, and Ur. and Mrs. Peck, and one or two others. That is all I remember of.”

In the course of his cross-examination this wdtness volunteered the following statement: “Most cases, you understand, on the railroads now are settled; those that are reasonable.” Counsel then asked the following question: “Well, those that ask-for a reasonable sum in comparison to their injuries?” The witoess answered: “That is, if the railroad thinks it is reasonable, they settle; yes. We settle ninety-nine out of -one hundred, and it isn’t the railroad’s fault that they don’t settle the other one.” And again he says: “I think the railroads have been very reasonable in the last fifteen years. ... I think our claim agents are very reasonable; they try to make the men satisfied.” We can conceive of no purpose for which counsel for appellant introduced this matter into the case, unless it was to impress upon the minds of the jury that it is the policy of the railroad company to make a fair and honorable settlement of all just claims for damages made against it, and further to create the impression that the case at bar would have been amicably settled had it not been for what the railroad company deemed the unreasonable and extortionate demands of respondent. However, we are not concerned as to the motive counsel for appellant may have had in introducing this ele* ment into the case, but, having done so, without limiting it to anj special purpose, counsel on the other side 13 had a perfect right to comment upon it, and to draw therefrom any inferences, by way of argument, of which it was susceptible ; and, so long as he kept within the bounds of decorum, appellant had no right, to complain. But com-ceding, for the purposes of argument, that counsel did exceed the limits of legitimate argument, and that the remarks complained of were improper, this assignment of error must nevertheless be overruled. The record shows that the remarks were made in the opening argument for respondent; that counsel for appellant was present at the time and made no objection thereto, but permitted the attorney malting them to proceed without interruption. No objection was made at all to the remarks, nor was there any exception taken to them until after the case was submitted to the jury and the jury had retired to consider their verdict. Nor did appellant ask the court to instruct the jury to disregard the remarks. The great weight of authority holds that a party, in order to avail himself of the misconduct of opposing counsel in the argument of a case, and have it reviewed on appeal, must make a seasonable objection, and thereby give the trial court an opportunity to remove any prejudicial effect 14 it may have had' on the .case by admonishing the offending counsel to desist, or by timely instruction to the jury to disregard the objectionable remarks.

We do not wish to be understood as holding that in all cases of misconduct of this character an admonition, rebuke, or reprimand from the court, even when supplemented hy cautionary instructions to the jury, will remove the prejudicial effect produced by the misconduct. Instances may, and'do sometimes, occur when the misconduct is so flagrant and of such a character that neither a vigorous reprimand of counsel nor an instruction to the jury can right the wrong inflicted on the adverse party by such misconduct. But even in such cases the authorities practically all hold that it is incumbent upon the aggrieved party, if he intends to rely on tbe misconduct as error, to interpose objections thereto at tbe time it occurs. Thompson, in bis work on Trials (section 957) tersely and, as we think, correctly states the general rule as follows:

“In the discharge of this office, as of every other, the presiding judge is entitled to reasonable aid from the counsel in the case on trial, or from the parties themselves, where they appear in propria persona. Where counsel, in arguing to the jury, exceed the limits allowed to advocacy, the way to correct the prejudicial effect of the argument is either to object to it at the time, to answer it by counter ■argument, or to ask suitable instructions to the jury with reference to it. After verdict it comes too late; and, whether the objection is saved for review by affidavit, or by.a recital in a bill of exceptions (according to the practice in the particular jurisdiction), it is equally necessary that the record should show that the objection was made at the time of the misconduct.”

Tbe following authorities illustrate and support this doctrine; 2 Ency. Pl. & Pr. 755; Spelling, New Tr. & App. Pro. 90; State v. Spencer, 15 Utah 149, 49 Pac. 302; C., B. & Q. Ry. Co. v. Kellogg, 55 Neb. 748, 76 N. W. 462; U. P. Ry. Co. v. Field, 137 Fed. 14, 69 C. C. A. 536; Rudolph v. Landwerlen, 92 Ind. 34; Metropolitan Ry. Co. v. Johnson, 90 Ga. 500, 16 S. E. 49. Furthermore, section 3304, Comp. Laws 1907, so far as material here, provides:

“What may be reviewed on appeal. — Upon an appeal from a judgment, all orders, rulings and decisions in an action or proceeding to which exceptions have been taken in the court below, or which -are deemed excepted to, as provided by this Code, are before the Supreme Court for review.”

Misconduct of counsel in making improper remarks to tbe jury in tbe course of an argument is not one 15 of tbe matters deemed excepted to. Section 3282, 'Comp. Laws 1907, provides:

“An exception is an objection upon a matter of law to the de■cision made by a court, judge, referee, or other judicial officer, in -an action or proceeding. The exception must he taken at the time the decision is made except as provided in the next section.”

By an examination of the next section it will be seen that the matter under consideration does not fall within it. Under these provisions of the statute it seems plain that an exception must be taken to an order, ruling, or decision of the court, otherwise it will be unavailing on appeal for any purpose. In this case no objection, formal or otherwise, was made to the alleged improper remarks; nor was there any request made for an instruction to the jury on the subject. Consequently there was no ruling or refusal to rule thereon by the court, and hence there is nothing in this assignment of error which we are authorized to review. 16 What we have here said disposes of several other assignments of error which are based upon the alleged misconduct of counsel for respondent in their discussion of the ease to the jury.

In conclusion we remark that, after a thorough anid careful’ examination of the entire record, we are satisfied that the case was fairly and impartially tried, and that no injustice has been done. There is an abundance of evidence to sustain the verdict. ■

The judgment of the court below is affirmed, with costs.

STRAUP, C. I., and FRICK, J., concur.