Washington Railway & Electric Co. v. Dittman

Pleading; Variance; Street Railways; Witnesses; Cross-Examination; Trial. 1. In an action against a street railway company to recover for the death of a passenger who, it is claimed in the declaration, was thrown from one of the defendant’s cars while it was being run at an unusual speed while rounding a curve of the defendant’s track, it is not error to admit evidence for the plaintiff that the track was uneven on the curve, for the purpose of showing whether in view of that fact the ear could not have been run around the curve slower than the usual rate of speed around an ordinary curve, even though there is no allegation in the declaration as to any negligence in the construction or maintenance of the track. 2. It- is proper to permit upon cross-examination the bringing out of anything tending to contradict, modify, or explain the testimony given by a witness on his direct examination, or any logical inference resulting from it that may make for the party calling him. If a party wishes to examine a witness as to matters not coming within these limitations, he must do so by making him his own witness and calling him as such in the subsequent progress of the case. 3. Where the declaration in an action against a street railway company to recover for the death of a passenger charges that the decedent was thrown from one of the defendant’s cars while it was being run around a curye in the defendant’s track at an unusual rate of speed, and the motorman, in testifying for the defendant, states on direct examination that the car at the time was going at the rate of about 2i miles an hour, a question asked on cross-examination as to whether he was familiar with the construction of the curve, and whether the inner or outer rail was higher, is permissible as testing the recollection of the witness as to conditions existing at the time. ' 4. The mode of conducting a trial, and the order of introducing evidence, and the time when it is to be introduced, are matters properly belonging very largely to the practice of the court where the matters of fact are tried.by a jury. 5. A judgment will not be reversed because the trial court permitted a question on cross-examination to be answered by a witness for the unsuccessful party, which was beyond the scope of the direct examination, in the absence of anything to show that there was an abuse of discretion by the trial court.

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia, on verdict, in an action to recover damages for tbe death of tbe plaintiff’s intestate. Tbe Court in tbe opinion stated tbe facts as follows: Appeal from a judgment in tbe supreme court of tbe District upon a verdict for tbe plaintiff, Charles F. Dittman, administrator of tbe estate of Frederick W. Dittman, deceased, appellee here, in an action.for damages growing out of tbe death of tbe plaintiff’s intestate while a passenger on one of appel-' lant’s electric cars. In liis declaration plaintiff alleged that the plaintiff’s intestate was thrown from the car while it was rounding a curve in front of the Union station in this city, because the car was being run at an unusual rate of speed while “upon said curve of said track.” The evidence was conflicting as to the rate of speed of the car as it was rounding this curve. Among other witnesses for the defendant was the motorman who was operating the car at the time of the accident, and who, after testifying as did all the other witnesses that the accident happened on the curve, stated that his car was then running about 2-|- miles an hour. Upon cross-examination he was asked whether he was familiar with the construction of this curve and whether the inner or outer rail was the higher. To this question an objection was interposed on the ground that there was no allegation in the declaration as to any negligence in the construction or maintenance of the track. A colloquy between the court and counsel ensued, during which counsel for the plaintiff stated that they were not seeking to introduce this testimony for the purpose of showing a defective condition of the track as an independent act of negligence, but were seeking to show that one rail was higher than the other, that this condition was known to the company, and that the speed of the car should have been governed accordingly. The court ruled that “the plaintiff was entitled to have the evidence admitted for the purpose of showing whether, in view of this situation of the track, the car shoidd not have run slower than the usual rate of speed around an ordinary curve.” A further objection and exception thereupon was noted by the defendant upon the ground “that this line of cross-examination was not responsive to the direct examination of the witness.” The witness then testified that the outer rail was the lower around this curve, and that this condition was known to him at the time. No suggestion of surprise or request for further time to meet this evidence was made by the defendant. During the argument of the case the defendant objected to certain remarks of plaintiff’s counsel, whereupon the court said: “The court has ruled that you [plaintiff] are not entitled to show that there was any defective condition there, but you have a right to argue the hind of a curve there was, and the kind of care which the defendant must exercise on that kind of a curve.” The court’s charge was in harmony with this ruling.