
    Claude C. King, Appellant, v. Chicago, Milwaukee & St. Paul Railway Co., Appellee.
    1 Evidence: impeachment. It is permissible to show the occupation and character of the business a witness is engaged in for the purpose of impeaching him, but particular instances of falsehood cannot be shown for that purpose.
    2 New trial. The trial court is the better judge of whether the in-troduction of certain evidence is prejudicial; and when it finds that prejudice has resulted therefrom which cannot be removed by a withdrawal of the evidence, its discretion in granting a new trial will not be interfered with, notwithstanding such withdrawal.
    
      Tuesday, June 9, 1908.
    
      Appeal from Woodbury District Court.— Hon. David Mould, Judge.
    Plaintiff had a verdict against defendant company for damages received by him while a passenger upon one of defendant’s trains. On defendant’s motion this verdict was set aside and a new trial awarded. Plaintiff appeals.—
    
      Affirmed.
    
    
      J. L. Kennedy and J. P. Shoup, for appellant.
    
      Shull, Farnsworth & Sammis, for appellee.
   Dee-mbb, J.

One La Plesh was a witness for the defendant, and, upon cross-examination, plaintiff’s counsel, over defendant’s objection, was permitted to indentify an advertisement sent out by the witness, and to introduce the same in evidence. This advertisement showed that witness was general agent for Mountain Valley Mineral Water for Iowa, South Dakota, and Nebraska. The circular introduced showed that this mineral wáter was a cure for Bright’s disease, rheumatism, cystitis, diabetes, dropsy, and all stomach troubles resulting from a torpid liver. Plaintiff’s counsel in argument used these statements in his address' to the jury as impeaching the character and truthfulness of the witness, in that they were untrue in fact, as every one knows. This argument was objected to, and the objection was overruled. It is true that after the paper was received, and after the argument was made, plaintiff’s counsel offered to withdraw the exhibit, and the defendant’s counsel was asked if he consented to the withdrawal. In response he said he was not asking to have anything withdrawn and that he stood upon his objection. Thereupon the court overruled defendant’s objections, not only to the paper, but to the argument as well. The new trial was granted because the trial court became convinced that it was in error in admitting this testimony.

It is entirely permissible to show the occupation of a witness and the character of his business; but it is not proper to impeach him by showing that, in the pursuit thereof, he made false and untrue statements. This is not the way in which to show a witness’ reputation for truth and veracity. Testimony as to particular instances where he spoke an untruth in the pursuit of his occupation are inadmissible. Any other rule would open up all sorts of collateral inquiries; and from the standpoint of public policy, as well as to maintain directness of issue, impeachment should not be permitted by showing special instances of overstatement or of untruthfulness. We need cite no cases in support of so plain a proposition.

It may be, had the court overruled defendant’s motion for a new trial, and there was no showing of improper use of the advertisement, we might say that no prejudice resulted. But the trial court sustained the motion, and was evidently of the opinion that counsel made an improper use of the exhibit. The trial court knew better than any one else whether the introduction of the exhibit was prejudicial, and, as it had a large discretion in the matter of setting aside the verdict upon this, as well as other, grounds, we should not interfere. Appellant says that he offered to withdraw the exhibit, but that defendant’s counsel would not consent thereto. Indeed, his claim is a little broader than this — it is to the effect that he would have withdrawn it had not counsel objected. The truth as shown by the record is that defendant’s counsel did not consent to the withdrawal, but insisted upon his objections, claiming that all the harm had been done that could have been, and he desired to preserve his record. This is far from a consent to the withdrawal and as a matter of fact plaintiff did not withdraw it. Even had he done so, the trial court may well have found that this did not remove the prejudice already produced through the use thereof. If such had beeu the finding, the trial court was justified in setting aside the verdict. It often happens that a ruling made to correct a prior erroneous one does not have that effect, for the reason that the virus has already entered the jurors’ minds and cannot be eliminated by a subsequent ruling. There was no abuse of discretion in sustaining the motion for a new trial. As supporting these conclusions, see Madden v. Koester, 52 Iowa, 692; Comm v. Schaffner, 146 Mass. 512 (16 W. E. 280); Shepherd v. Brenton, 15 Iowa, 84.

The order sustaining the motion for a new trial must be, and it is, affirmed.  