
    Simpson v. Newinger et al.
    (Decided December 19, 1927.)
    
      
      Messrs. Davies, Hoover & Beall, for plaintiff in error.
    
      Mr. August A. Rendigs, Jr., and Mr. Edward L. Meyer, for defendants in error.
   Hamilton, P. J.

This is a personal injury case, the trial of which resulted in a verdict and judgment for the defense.

Plaintiff in error, John Simpson, who was plaintiff below, prosecutes error to this court, specifying two grounds for reversal: First, error in the exclusion of evidence; and, second, error in the general charge.

The evidence excluded concerned the laying of the foundation for impeachment of a witness for the defense. The events that took place bearing on the question, as recorded in the bill of exceptions, are as follows:

“Q. Do you remember talking to a man by the name of Merland, who said he represented the bus company? A. I remember a man coming into the store, but”he didn’t mention any names.

“Q. Tou told him, didn’t you—

“Mr. Rendigs: Just a moment; I want to interpose an objection to any statements he might have made. This is the agent, and not the principal.

“The Court: I understand; I will sustain the objection.

“Mr. Beall: I would like to be heard on this matter. He has made a statement here that he was 15 feet behind the bus, and I think a contrary statement made to—

‘ ‘ Mr. Rendigs: Just a minute, Mr. Beall: I don’t think there should be an argument when the jury is present.

“The Court: I will sustain the objection; I cannot permit that.

“Mr. Beall: My purpose, if your honor please, is to impeach this witness.

“The Court: I am aware of that.

“Mr. Beall: Your honor rules that I may not proceed?

“The Court: Yes.

“Mr. Beall: I will take an exception.”

This record discloses that counsel for the plaintiff was cross-examining the main witness for the defendant; that he sought to lay the foundation for impeachment by asking 'the witness if he had made contrary statements at another time and place to a certain person, and that he was doing this for the sole purpose of impeachment. The court did not permit counsel to finish the question, and ruled that he should not proceed on that line. This was error. The court was probably misled in applying the rule that a principal is not bound by the statements of his agent of facts constituting substantive evidence of liability.

The general rule is that, having laid the foundation, contradictory statements of witnesses may be shown for the purpose of impeachment. We know of no law that would make an exception to the rule where 'the witness happened to be an agent of a principal. It is true that facts not admissible in chief cannot be introduced indirectly under the guise of impeachment. But that was not the purpose for which this evidence was offered. It has been said that there is always danger that such evidence, in contradiction, will be used for an improper purpose; that is, instead of using it for impeachment purposes, the jury might look to the contradiction as evidence of the defendant’s liability. It was held by the Supreme Court of Ohio in Kent v. State, 42 Ohio St., 426, that:

“It is well settled that this” danger “is not a sufficient ground for excluding evidence.”

The law bearing on the question of impeachment is well considered and thoroughly discussed with numerous citations in the above case.

The evidence should have been admitted by the court with careful instructions to the jury that it should be considered only as affecting the credibility of the witness.

The matter complained of in the general charge is found on pages 134 and 135, and is as follows:

“You have heard the testimony of the witness; in some respects you may find they agree, and in some respects you may find that they are diametrically opposite. It is not the province of the court to comment on the testimony; the court should call your attention to the fact that there are claims on one side of the case that the plaintiff jumped off of the bus while in motion, and there are claims that he did not, that he waited for it to come to a stop. While the court cannot comment on that, but the court may say that, if you should find that the plaintiff alighted from the bus while it was still in motion, ‘that should be taken, or may be taken, into consideration by you in determining whether or not the plaintiff was guilty of any negligence by so alighting from the bus; and the same would apply to the claim that he alighted from the bus while it was out iu the street some place — I don’t know whether it was or whether it was not, that is for you,.not for me, to say. But there is the' claim that he alighted from the bus while it was substantially out in the street some where near the car track, and, on the other hand, there is a claim that he did not. Now those are questions of fact which will have to be decided by you, and by you alone.”

This part of the charge should not have been given, and particularly in the manner in which it was stated to the jury. The language used would have a tendency to lead the jury to the conclusion that the main question in the case was as to whether or not the plaintiff had jumped off of the bus while the bus was in motion. This was but one phase of the evidence bearing upon the question of negligence of the defendant, as well as contributory negligence of the plaintiff.

It is improper for the trial court to pick out a part of the evidence introduced in a case and comment on the same, giving it undue emphasis. That this charge had this effect is further shown where, in the record, the question was asked by a juror:

“I would like to know if that bus had its doors open so that passengers could enter or leave the bus'? ’ ’

It will be borne in mind that the bus company was not a party to the case, and it seems to have had the effect of mainly directing the jury to the question of whether or not the plaintiff was guilty of contributory negligence in getting off of the bus before it stopped, and minimizing the question of the negligence of the defendant, which might, notwithstanding the conduct of the plaintiff in getting off the bus, have been wholly responsible for the apeident. The evidence was admitted generally, and not limited to a specific purpose, and should not have been emphasized by special reference in the charge.

This error affects all the issues, and is not cured by the general verdict.

Enough has been said to show the prejudicial character of this part of the charge and the probability of it having misled the jury.

For error in excluding the evidence referred to, and for error in the charge of the court herein stated, the judgment will be' reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Mills and Cushing, JJ., concur.  