Dibell, J.
Action to recover for injuries sustained by the plaintiff while in the employ of the defendant in interstate commerce. There was a [493]*493verdict for the plaintiff. The defendant appeals from the order denying its alternative motion for judgment notwithstanding or a new trial.
The case was here on a former appeal after a verdict for the plaintiff. Perkins v. Great Northern By. Co. 152 Minn. 226, 188 N. W. 564. A reversal resulted. It was based on the submission as a ground of recovery of the plaintiff’s claim that a negligent jerking of the train was a cause of his falling; and upon the admission of the plaintiff’s testimony of a self-serving declaration made by him after the accident. These two matters are not involved on this appeal. The questions which we have are these:
(1) Whether the evidence justifies a finding necessarily included in the verdict for the plaintiff that the handhold on top of the freight car loosened and caused his fall.
(2) Whether there was prejudicial error in permitting a witness to testify in rebuttal as to a declaration made by the plaintiff soon after the accident.
The facts are stated in the opinion on the former appeal. They do not much differ on this appeal and we refer to the former opinion for a statement of them.
The Safety Appliance Act requires “secure grab irons or handholds.” 27 St. 531, c. 196, § 4; U. S. Comp. St. 1916, § 8608. The duty of the carrier to furnish them is absolute and the exercise of care does not excuse. St. Louis, I. M. & S. Ry. Co. v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. ed. 1061; Great N. Ry. Co. v. Otos, 239 U. S. 349, 36 Sup. Ct. 124, 60 L. ed. 322; St. Joseph & G. I. Ry. Co. v, Moore, 243 U. S. 311, 37 Sup. Ct. 278, 61 L. ed. 741. If the handhold on the car on which the plaintiff was working loosened and caused his fall he should recover. If it did not, he cannot recover. The defendant’s theory is that the handhold did not loosen,' but that the plaintiff grabbed the hatch lever of the ice box and carried it with him as he fell between the refrigerator car and the ■tender. The hatch lever was found afterwards at the place of the accident with marks upon it as if made by car wheels, and with threads of a kind corresponding to' the plaintiff’s clothing ground [494]*494into it. Nearby was a shoe of the plaintiff. Blood was about. The plaintiff is positive that he did not grab the hatch lever. We conceive that he is mistaken. A concession that he grasped the hatch lever is not conclusive against his claim that the handhold loosened. If the handhold loosened as he turned about in descending he would have grasped for something involuntarily and the hatch lever was a likely thing to reach. If it were conceded that the handhold loosened the circumstance that the hatch lever was found where it was would not be inconsistent with the plaintiff’s claim that the defective handhold was the cause of his injury. It hardly would be urged seriously against a recovery. It is only when there is proof that the handhold was not loosened that the presence of the hatch lever becomes important. Then it is important, for if the jury found that the plaintiff grasped the hatch lever and carried it with him, this it might conclude was enough to explain the accident, and so find more readily that the defendant was right and the plaintiff wrong with respect to the claimed condition of the handhold.
At the close of the testimony the action could not have been dismissed, nor if the defendant had rested then could a verdict have been directed in its favor, for the plaintiff’s positive testimony, not greatly weakened by cross-examination, was that the handhold loosened and caused his fall. When given it was believable testimony. If a verdict ought to have been directed at the close of the testimony, and if judgment or a new trial must be granted now, it is because the testimony offered by the defendant overbears that of the plaintiff so that the law must say that the plaintiff’s claim is wrong.
The conductor and brakeman who examined the car soon after the accident say they saw no defect in the handhold. Their examination was not under the most favorable conditions; but they should have seen a material defect. Neither noticed whether the hatch lever was on or off. The car inspectors made an examination in the Twin City yards the next day, some 30 hours after the accident. Their testimony is that the car and handhold, which seem to have been identified sufficiently, were in proper condition then.. We [495]*495do not criticize these witnesses. Their testimony, like that of the plaintiff, is subject to human imperfections and to error and mistake and the influence of prejudice and interest, and is to be weighed by a jury as in the ordinary common law case. The testimony of the plaintiff that the handhold loosened still stands. If it loosened slightly it was not “secure,” and a slight loosening, easily remedied, would account for the accident.
If we were trying the facts we would find that the handhold was not defective, and did not loosen. Our explanation of the accident, if we made one, would be that the plaintiff, jerked by a sudden movement of the train and slipping or about to fall grabbed the hatch lever and carried it with him. But the jury has found differently and the trial court is of the view that the verdict should stand. This is the second verdict for the plaintiff. We do not stress the effect of the first one. There were other issues then and a new trial was granted for error. In the opinion we purposely refrained from passing upon the sufficiency of the evidence. That there was an issue of fact is clear when we consider, as noted before, the necessary result of a motion to dismiss at the close of the plaintiff’s case, or of a motion to. direct if the defendant had rested then. If the result should be different now it is because the defendant’s testimony overcomes that of the plaintiff; in other words, because the testimony of the plaintiff on the vital point is false, either mistakenly or wilfully, and the law should pronounce it so. We cannot hold so, and so we cannot grant judgment notwithstanding. It was within the discretion of the trial court to grant a new trial. We might grant a new trial, without making the law of the case for another trial, upon the ground that the evidence is so unsatisfactory that a new trial in the interest of justice should be had. Mullen v. Otter Tail Power Co. 134 Minn. 65, 158 N. W. 732. We think we should not do so. Our views are against the fact which the verdict establishes. It is not our province to determine the fact. That is for a jury. We should not remand the case for a new trial and another verdict. The injury occurred nearly four years ago. The litigation should end.
[496]*496A witness testified, on rebuttal as to what the plaintiff said about the loosening of the handhold when he was found by the side of the railroad an hour after the accident. It was in accord with what he said as witness. This testimony was offered in the case in chief as a part of the res gestae and was rejected. The rule is that declarations of a witness consistent with his testimony are incompetent to support it. The plaintiff seeks to sustain the testimony under the exception stated in State v.
Free access — add to your briefcase to read the full text and ask questions with AI
Dibell, J.
Action to recover for injuries sustained by the plaintiff while in the employ of the defendant in interstate commerce. There was a [493]*493verdict for the plaintiff. The defendant appeals from the order denying its alternative motion for judgment notwithstanding or a new trial.
The case was here on a former appeal after a verdict for the plaintiff. Perkins v. Great Northern By. Co. 152 Minn. 226, 188 N. W. 564. A reversal resulted. It was based on the submission as a ground of recovery of the plaintiff’s claim that a negligent jerking of the train was a cause of his falling; and upon the admission of the plaintiff’s testimony of a self-serving declaration made by him after the accident. These two matters are not involved on this appeal. The questions which we have are these:
(1) Whether the evidence justifies a finding necessarily included in the verdict for the plaintiff that the handhold on top of the freight car loosened and caused his fall.
(2) Whether there was prejudicial error in permitting a witness to testify in rebuttal as to a declaration made by the plaintiff soon after the accident.
The facts are stated in the opinion on the former appeal. They do not much differ on this appeal and we refer to the former opinion for a statement of them.
The Safety Appliance Act requires “secure grab irons or handholds.” 27 St. 531, c. 196, § 4; U. S. Comp. St. 1916, § 8608. The duty of the carrier to furnish them is absolute and the exercise of care does not excuse. St. Louis, I. M. & S. Ry. Co. v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. ed. 1061; Great N. Ry. Co. v. Otos, 239 U. S. 349, 36 Sup. Ct. 124, 60 L. ed. 322; St. Joseph & G. I. Ry. Co. v, Moore, 243 U. S. 311, 37 Sup. Ct. 278, 61 L. ed. 741. If the handhold on the car on which the plaintiff was working loosened and caused his fall he should recover. If it did not, he cannot recover. The defendant’s theory is that the handhold did not loosen,' but that the plaintiff grabbed the hatch lever of the ice box and carried it with him as he fell between the refrigerator car and the ■tender. The hatch lever was found afterwards at the place of the accident with marks upon it as if made by car wheels, and with threads of a kind corresponding to' the plaintiff’s clothing ground [494]*494into it. Nearby was a shoe of the plaintiff. Blood was about. The plaintiff is positive that he did not grab the hatch lever. We conceive that he is mistaken. A concession that he grasped the hatch lever is not conclusive against his claim that the handhold loosened. If the handhold loosened as he turned about in descending he would have grasped for something involuntarily and the hatch lever was a likely thing to reach. If it were conceded that the handhold loosened the circumstance that the hatch lever was found where it was would not be inconsistent with the plaintiff’s claim that the defective handhold was the cause of his injury. It hardly would be urged seriously against a recovery. It is only when there is proof that the handhold was not loosened that the presence of the hatch lever becomes important. Then it is important, for if the jury found that the plaintiff grasped the hatch lever and carried it with him, this it might conclude was enough to explain the accident, and so find more readily that the defendant was right and the plaintiff wrong with respect to the claimed condition of the handhold.
At the close of the testimony the action could not have been dismissed, nor if the defendant had rested then could a verdict have been directed in its favor, for the plaintiff’s positive testimony, not greatly weakened by cross-examination, was that the handhold loosened and caused his fall. When given it was believable testimony. If a verdict ought to have been directed at the close of the testimony, and if judgment or a new trial must be granted now, it is because the testimony offered by the defendant overbears that of the plaintiff so that the law must say that the plaintiff’s claim is wrong.
The conductor and brakeman who examined the car soon after the accident say they saw no defect in the handhold. Their examination was not under the most favorable conditions; but they should have seen a material defect. Neither noticed whether the hatch lever was on or off. The car inspectors made an examination in the Twin City yards the next day, some 30 hours after the accident. Their testimony is that the car and handhold, which seem to have been identified sufficiently, were in proper condition then.. We [495]*495do not criticize these witnesses. Their testimony, like that of the plaintiff, is subject to human imperfections and to error and mistake and the influence of prejudice and interest, and is to be weighed by a jury as in the ordinary common law case. The testimony of the plaintiff that the handhold loosened still stands. If it loosened slightly it was not “secure,” and a slight loosening, easily remedied, would account for the accident.
If we were trying the facts we would find that the handhold was not defective, and did not loosen. Our explanation of the accident, if we made one, would be that the plaintiff, jerked by a sudden movement of the train and slipping or about to fall grabbed the hatch lever and carried it with him. But the jury has found differently and the trial court is of the view that the verdict should stand. This is the second verdict for the plaintiff. We do not stress the effect of the first one. There were other issues then and a new trial was granted for error. In the opinion we purposely refrained from passing upon the sufficiency of the evidence. That there was an issue of fact is clear when we consider, as noted before, the necessary result of a motion to dismiss at the close of the plaintiff’s case, or of a motion to. direct if the defendant had rested then. If the result should be different now it is because the defendant’s testimony overcomes that of the plaintiff; in other words, because the testimony of the plaintiff on the vital point is false, either mistakenly or wilfully, and the law should pronounce it so. We cannot hold so, and so we cannot grant judgment notwithstanding. It was within the discretion of the trial court to grant a new trial. We might grant a new trial, without making the law of the case for another trial, upon the ground that the evidence is so unsatisfactory that a new trial in the interest of justice should be had. Mullen v. Otter Tail Power Co. 134 Minn. 65, 158 N. W. 732. We think we should not do so. Our views are against the fact which the verdict establishes. It is not our province to determine the fact. That is for a jury. We should not remand the case for a new trial and another verdict. The injury occurred nearly four years ago. The litigation should end.
[496]*496A witness testified, on rebuttal as to what the plaintiff said about the loosening of the handhold when he was found by the side of the railroad an hour after the accident. It was in accord with what he said as witness. This testimony was offered in the case in chief as a part of the res gestae and was rejected. The rule is that declarations of a witness consistent with his testimony are incompetent to support it. The plaintiff seeks to sustain the testimony under the exception stated in State v. La Bar, 131 Minn 432, 155 N. W. 211, where the cases are collected, that antecedent statements consistent with the testimony of a witness may be shown where the adverse party claims a late fabrication to meet recently arising exigencies. See note 41 L. R. A. (N. S.) 890; 2 Wigmore, Ev. § 1126, et seq. We do not sustain the plaintiff’s contention. The rule embodied in the exception is without application here. It would permit counsel, if inconsistent statements of his witness were shown, to prove generally that he had made prior consistent statements. It would result in an easy evasion of the settled rule.
When the case was here before it was said in the opinion that it was doubtful whether the testimony of the plaintiff’s declarations was admissible under the res gestae rule.1 That statement evidently influenced the trial judge in rejecting it when offered as part of plaintiff’s case in chief. On further consideration we conclude that the statement should not have been made. It did not bear upon the questions decided. We are of the opinion that it was within the discretion of the trial court to receive the testimony as a part of the res gestae. See Clark v. Davis, 153 Minn. 143, 190 N. W. 45, and cases cited; Ahlberg v. Griggs, 158 Minn. 11, 196 N. W. 652. The defendant could not have complained if it had been received as substantive evidence of the facts declared. It was received for another and narrower purpose, to which the court limited its effect. A party who has no right to have evidence excluded when it is offered to substantiate his adversary’s case, is not prejudiced if the evidence is received when subsequently offered for another and more limited purpose even though it was not admissible for that purpose. If the testimony should have been received as [497]*497substantive evidence, defendant was not prejudiced by the court’s charge that it should be considered only in connection with plaintiff’s alleged contradictory statements.
Order affirmed.