
    RAPPAPORT v. CAPITAL TRACTION COMPANY.
    Witness; Cross-Examination; Failure to Call Witness; Inference.
    1. Tlie question as to whether or not his mother had a consultation with her attorney four days after the accident is proper cross-examination of a witness who has testified, in an action by his mother for personal injuries, to her serious condition for over a week after her injury; as such question tends in some degree to contradict his previous testimony as to her condition.
    2. An offer to prove, in an action for personal injuries against a street railway, on cross-examination of the employee in charge of its legal department, that he had subpoenaed, • hut not produced, a certain person as a witness, is properly rejected, because not lending to affect his credibility, or to contradict his testimony in chief, which was confined to observations made by him of the plaintiff’s movements, with a view to showing that her injuries wore not as severe as claimed.
    3. The mere fact that a party excuses a witness whom he has subpoenaed does not warrant the inference that the witness, if called, would have testified against him; but to warrant this inference to be drawn it must appear either that the witness knew something about the case or was so positioned with respect to the matter in controversy as to he able probably to give testimony that would aid in developing the truth about it. (Citing Chesapeake Beach It. Co. v. Bree, 39 App. D. C. 58.)
    No. 3177.
    Submitted January 9, 1919.
    Decided February 3, 1919.
    
      Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of the District of Columbia, on verdict, in an action of negligence against a street railway.
    
      Affirmed.
    
    Tbe Court in tbe opinion stated the facts as follows:
    Rebecca Rappaport sued tbe Capital Traction Company because, as alleged, sbe sustained injuries through tbe company’s negligence in tbe operation of one of its street cars. Tbe jury found against ber, and sbe appeals, assigning four errors.
    
      Mr. Edward 8. Duvall for the appellant.
    
      Mr. Frank J. Hogan for tbe appellee.
   Mr. Chief Justice Smyth

delivered tbe opinion of tbe Court:

Tbe first and second assignments relate to the' cross-examination of tbe plaintiff’s son. He bad testified concerning bis mother’s injuries that “nothing tbe family could do for ber would pacify ber; sbe could not keep quiet; * * * as soon as tbe doctor would leave sbe would call for him again, and we would have to call him back; and that condition lasted, I should say — that serious condition — for over a week. * * * n

Tbe son was asked on cross-examination whether or not bis mother had a consultation with ber attorney on June 18, four days after tbe accident, to which he replied in tbe affirmative. No objection was made at tbe time tbe question was propounded, but at tbe close of tbe cross-examination counsel for the plaintiff moved to strike out tbe testimony. We think tbe cross-examination was proper as tending in some degree to show that bis previous statement with respect to bis mother’s condition for “over a week” after the accident was not correct.

On tbe court’s refusal to accept an offer of testimony by tbe plaintiff are grounded tbe remaining assignments of error.

After the testimony for both sides had been closed, and the arguments on the prayers for instructions completed, plaintiff recalled a witness, Crow, an employee of the company, who had testified on its behalf, and asked him if he had subpoenaed “a gentleman by the name of Boyce.” To this the traction company objected on the ground that it was not proper cross-examination. Counsel for the plaintiff, in response to an inquiry by the court as to what he desired to show by the witness, said that “they [the traction company] had another witness and did not put him on the stand, and I claim that the jury, under the principle of law, have a right to assume that he would have testified against them.” The objection was sustained.

The examination in chief of the witness, after he had stated that he was in charge of the investigation of claims for the company’s legal department, was confined to certain observations made by him of the plaintiff’s movements in her husband’s store, with a view to showing that her injuries were not as severe as she claimed. Obviously, neither the testimony called for by the question objected to, nor the offer of proof, had any tendency to contradict, qualify, or limit what the witness liad said in chief, or to affect his credibility.

Furthermore, the testimony in question, considered from any angle, was immaterial; and its exclusion could have resulted in no prejudice to the plaintiff. The mere fact that a party excuses a witness whom he had subpoenaed does not warrant the inference that the witness, if called, would have testified against him. Before this inference can be drawn it must appear either that the witness knew something about the case, or was so positioned with respect to the thing in controversy as to be able probably to give testimony that would aid in developing the truth concerning it, This is illustrated by our decision in Chesapeake Beach R. Co. v. Brez, 39 App. D. C. 58, 71, where the failure of the defendant company to call to the witness stand the gripman on the car at the time of the accident was animadverted upon. He, the case shows, “was in a better position than any passenger on the cars to see what caused the injury. * * * ” Nor this reason, we said that the failure to produce him warranted the presumption that his testimony, if given, would be prejudicial to the company.

Similarly, the Supreme Court of the United States has held that “even in criminal cases * * * if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.” Graves v. United States, 150 U. S. 118, 121, 37 L. ed. 1021, 1023, 14 Sup. Ct. Rep. 40. There is nothing in the record before us which tends in the slightest degree to show that the testimony of the witness who was excused by the traction company “would elucidate the transaction” then being investigated by the court.

Finding no error, the judgment is affirmed, with costs.

Affirmed.  