
    Alexander M. Beattie v. Grand Trunk Railway Company.
    
      Evidence.
    
    The question Being as to the condition of a railroad track at the time of an accident* and the plaintiff having shown by a witness its condition both before and after the accident, it became material for the defendants to contradict the testimony of said witness, and the defendants introduced one witness who testified only to the condition of the track after the accident. Held, that it was competent for the plaintiff to show, upon cross-examination of one of the defendants’ witnesses, that there was a person, within the knowledge and reach of the defendants, who was with the plaintiff’s witness on both occasions when he saw the track, and by whom the defendants could contradict the testimony of the plaintiff’s witness, if it was false, and to argue, from the neglect of the defendants to call said person as a witness, that said testimony was true.
    Aotion on tbe case for the recovery of damages for personal injuries received by the plaintiff while being carried on the defendants’ passenger train, at a place a few miles west of Bromp-ton in Canada. Trial by jury, September term, 1867, Steele,,. J., presiding.
    . It appeared that the engine and cars were thrown from the track, and that the car in which the plaintiff was riding, was thrown down a high embankment and was overturned, and that the plaintiff’s right shoulder was dislocated, and that he received other injuries of less consequence.
    The plaintiff introduced Samuel D. Ball as a witness, who testified that, at the time of the disaster complained of, he was a' section-hand, employed on the section next the one where the injury occurred; and that he and James H. Eorbush, the section-master, and several other section-hands whose names Ball gave on cross-examination, went to the place where it occurred, the evening before, having been notified by a conductor that something was wrong in that direction; and that he then saw a rail in the track that was bent down six inches ; and that Bobert Brooks, an employee of the company, was left there to signal all trains that should come along, till the track should be repaired; and that they did not then have the means to repair it. Ball also gave testimony in regard to the state of the track and said bend in the rail after the accident had occurred, from observations made in company with said Eorbush, which was very materially contradicted by a witness of the defendants’ who saw the track after the accident, but not before; but the defendants introduced no witness as to the occurrence of the evening before, but argued that Ball’s account was not true. Ball testified on Saturday. The court adjourned at an early hour. On Monday the plaintiff, against objection by the defendants, was allowed to prove, by inquiry made .of one of the defendants’ witnesses, William Elms, who was at the time of the accident, and still is, road-master on the defendants’ road from Island Pond to Bichmond, that he had seen said Eor-bush On that morning (Monday morning) at the Northumberland depot, a place four miles distant from the court-house ; that the witness'did'not know where he was then (when the testimony was given) ; that said Eorbush was foreman of the Brompton section, and is now foreman of a section at West Milan, N. H., in the employ of the defendants. And from this the plaintiff’s counsel were allowed to argue, and ask the jury to infer, that the account given by said Ball was correct.
    The bill of exceptions did not show that exception was taken to the admission of this testimony, but the case was argued in the supreme court upon this point as though the question was raised in the bill of exceptions.
    Several exceptions were taken to the ruling of the county court upon different points, but were mostly waived in argument.
    
      
      Ray Ladd, for tbe plaintiff.
    Tbe defendants claimed that tbe account given of tbe state of tbe track at the place of tbe accident, by tbe plaintiff’s witness Ball, was untrue. It appeared that Eorbusb was present when Ball found tbe track in tbe condition be testified it was in tbe evening before tbe accident. Eorbusb was then, and continued to be to tbe time of tbe trial, in tbe defendants’ employ. He was within four miles from tbe court-house during tbe trial. It did not appear that any effort was made to procure bis attendance. It is absurd to say that tbe plaintiff could not be allowed to repel an attack upon bis witness, by showing that tbe defendants had at hand the means of contradicting him, if bis story was untrue, and that they neglected to do so. Tbe conduct of a party in relation to a given transaction, may always be shown on tbe trial and commented on by tbe counsel.
    
      George N. Rale, for the defendants.
    Tbe fact that Eorbusb was in New Hampshire, four miles from tbe place of trial, and at work for tbe defendants, is no evidence of what be would state if introduced as a witness. There was no evidence that tbe fact that be was at Northumberland, was known tó tbe defendants’ counsel, or any one having to do with tbe trial, nor that be could have been produced as a witness after tbe fact that bis evidence would be material, came to tbe knowledge of tbe defendants.
   Tbe opinion of the court was delivered by

Barrett, J.

Assuming, what tbe bill of exceptions does not show, that exception was taken by the defendants to tbe plaintiff’s being allowed to prove, by inquiry of one of tbe defendants’ witnesses, where Eorbusb was that Monday morning, viz., at Nor-thumberland, four miles distant from the court-house, when tbe trial was going on, we think there was no error in this respect. Ball had testified as to tbe condition of tbe track, from observations made by him before and after tbe accident in tbe presence of,^ and in company with Eorbusb. Tbe defendants' controverted tbe truth of Ball’s testimony on tbe strength of tbe testimony of a witness who saw the track at the place of tbe accident only after ■tbe accident. Eorbusb was a section-man in tbe defendants’ employ. In view of tbis conjuncture, it was in accordance with very long and uniform usage to attempt to countervail tbis assault upon tbe truthfulness of Ball, by showing that tbe conduct of tbe defendants in reference to tbis point in the trial, was inconsistent with tbe assumption and claim they were making. If Ball bad .testified falsely as to tbe condition of the road both before and after tbe accident, as seen by him in company with Eorbusb, and it was material for tbe defendants to meet that testimony by showing that it was false, tbe first thought on the subject would be to nail Eorbusb, a fellow section-man, in tbe employ of tbe defendants, who saw all that Ball could have seen and at tbe same time and under tbe same circumstances, as well as a single individual who was there only after tbe accident and not at tbe same time with Ball, and thus not leave the question of Ball’s credit to stand poised between bis own testimony and that of such other single witness. It standing thus poised, we think the attending circumstances gave force to tbe fact that tbe defendants did not •call Eorbusb, nor explain why not, when be was that morning within four miles from tbe court-house, and in tbe defendants’ employ. This being so, it was legitimate to make tbe inquiry, and to use it in argument for tbe purpose shown by the bill of exceptions.

Judgment affirmed.  