ARMOUR & CO. v. SKENE, 153 F. 241

ALDRICH, District Judge. Agnes Skene was injured in Waltham by a runaway team, which came into collision with a buggy in which she was sitting. It was alleged that the team belonged to Armour & Co., and that the injury resulted from the carelessness of its agents. The particular act of negligence, pointed out in the proofs, was that the driver threw the reins over the horse’s back, and went away leaving him unhitched in the street. There are over 40 assignments of error in this case, something, at least, unusual in an ordinary personal injury case.

We do not think it necessary, nor would it be useful, to discuss the merit of the various assignments seriatim. We do not characterize the exceptions as a whole as frivolous, but it is true that they are largely frivolous, and controlled by principles of law and rules of practice so familiar as not to require discussion. As, for instance, the exception with reference to the cross-examination of Macdonald, the driver, who was asked if he had been drinking on the day of the injury, and whether he had been drinking at the time of the trial, is something controlled by a familiar rule of practice.

It is quite true that whether he had been drinking on the day of the trial, something like six years after the injury, was clearly collateral to the question of negligence at issue, and had nothing to do with it; but it is not unusual or improper on cross-examination to resort to reasonable collateral expedients for the purpose of discrediting a witness. It is unquestionably within the discretion of the trial judge to give reasonable scope in that respect, and it is a discretion not reviewable except in cases involving extreme and clearly unwarrantable latitude.

And the exception with reference to the city ordinance, which was received and properly explained as something not conclusive, but as a piece of evidence to be considered with the other proofs in the case as bearing upon the alleged fact of negligence which the jury were to determine as an ultimate question, and the numerous exceptions with reference to the opinions of nonexperts and the statements of witnesses as to the plaintiff’s expressions of pain, involve no unfamiliar or unsettled questions.

The only two assignments of error which we feel called upon to consider at length are those which relate to the admission of evidence both of which involve technical error. It was a necessary element of Miss Skene’s case to show that the team belonged to the company. To do this, as properly might be done, a witness was called to show that Mr. Cunningham, the local superintendent of the company, was at the scene within a few minutes of the accident, and identified the team as one belonging to Armour & Co.

The question, which we think we ought to accept as intended to identify the team,' an identification competent to be proven by the admissions of the superintendent, was rather broad, as the witness was asked the general question as to what Cunningham said, and the witness replied: “This is Armour’s team that has done this, and we are liable.” Although there was no direct proof as to the relation which Cunningham sustained to the Armour & Co. business, it did appear in various ways that he assumed direction of affairs, and at the end of the trial the fact was not at all in controversy that he was local superintendent.

Therefore the first part of the answer as to the identity of the team was competent as relating to something within the scope of his authority. Moreover, this part of the exception is based upon the merest fiction, becattse it was practically conceded before the trial ended that it was an Armour & Co. team that injured Miss Skene.. It was necessary, however, for the plaintiff at the outset to offer proofs tending to connect the injury with an Armour & Co. team, because it was a thing then apparently not conceded.

This being so, it was not an unusual thing to allow that part of the answer of the superintendent to stand de bene, and, when upon the whole case it became a conceded fact without direct proof that he was local superintendent, so much of the answer as related to the identity of the team was rendered competent. But while that part of the exception relating to identity became mere fiction at the end of the trial, because it relates to a thing not remaining in controversy, it is still of significance upon the question as to what the purpose was in putting the original question.

At the stage of the trial at which the question was asked, the matter of identity was something requiring proof, and we think it hardly reasonable to assume, because the fact of identity became a conceded fact later on, that the purpose of counsel was alone to develop the incompetent matter as to liability. The last part of the answer as to liability was incompetent. But we think it only reasonable to assume that the incompetent part was not brought out intentionally.

Objection was promptly made, and the court said: “I shall admit it de bene, and I shall instruct the jury that, without further testimony, it has no effect, and as to effect including liability it may not be of the least probative value.” Thus the court removed present consideration so far as it could, and left the answer to stand, to be made good as to the question of identity, provided Cunningham’s relation to the company should be established, at the same time making a distinction against that part which related to liability as something which might not be of the least probative force under any circumstances.

Later, by way of instruction, the court limited the statement to the admission that the team belonged to the defendant, and expressly and emphatically told the jury that it could not at all be considered as an admission of liability.

We think a formal and impressive statement of that kind by way of instruction is quite as effective in the direction of removing inadvertent, incompetent matter, especially when made m support of an admonition given at the moment of its. being delivered from the witness stand, as any of the various means adopted for relieving a trial from the influence of accidental and incompetent statements made in the hearing of a jury.

Trials can only be as fair as “the lot of humanity will admit,” and it often happens that witnesses in answering, unwittingly and to the surprise of counsel, mix incompetent matter with the competent, and the only relief, as trials go, is through removing the effect by proper caution and admonition. Wc must presume that the jurors understood the court to mean what it said, and considered the case independently of the statements of Cunningham as to liability, as the court told them they should do.

If there were anything in such a situation leading to a reasonable suspicion that the incompetent matter was purposely brought out, the verdict would, of course, be set aside, partly upon the ground of punishment, and partly upon the ground that it made the trial an unfair one. It often happens as trials go, and it cannot be otherwise in the very-nature of things, that incompetent, and in a sense prejudicial, matter crops out accidentally and without design on the part of anybody.

It usually comes from untrained witnesses who have no knowledge as to what is competent and what is incompetent, and such matter is generally removed by a ruling, and nothing more is thought about it. These things are inevitable,-and it is necessary in the administration of justice that the trial should be accepted as a fair one, if the effect is cured by proper cautions and instructions from the trial court.

It sometimes happens that incompetent matter is ruled in, after discussion and deliberation, as something competent for the jury to consider, and, when found later in the trial to be incompetent, that it is withdrawn from the case under strong cautions to the jury, and the authorities are numerous which sustain verdicts as based upon a fair trial under such circumstances. Furthermore, as to the matter under consideration, it cannot with technical exactness be said that error was committed, because the evidence in .question was never in fact admitted; it at most was only allowed to stand de bene under caution.

But, quite aside from this, we think we ought to hold that the effect of what Cunningham said about liability was eliminated by what was sáid by the court. The next point which we consider relates to alleged error in permitting the plaintiff to show that the driver was discharged from Armour & Co.’s employment about a year after the runaway which caused the injury. This point is upon a different ground, because the evidence was admitted and allowed to stand.

In former times, under a rule- existing 'in many jurisdictions, it was competent to show in personal injury cases that highways, sidewalks, and appliances upon railroads ánd in mills were immediately repaired upon knowledge of the injury. Such evidence was received as showing something in the nature of an admission by the town, city, or railroad alleged to be at fault.

The old rule has been overthrown in many jurisdictions where it was formerly administered, and unquestionably does not exist in the federal courts; but, when trials were had under the old rule, proofs of repairs to be admissible must not be remote in point of time, and, in order to have any weight or probative force whatever with the jury, necessarily must have been closely related to the time of injury, because it stands to reason that nothing would be proven by way of admission to show that ice or snow was removed from the sidewalk a year after an injury by ice, or that a hole in a country road was repaired a year after an injury in question.

This results because such conditions are necessarily and naturally subject to change of seasons, and it is therefore understood that it was necessary under the old rule to connect the situation at the time of the change with the situation at the time of the injury in order to make repairs or changes competent evidence as admissions of any weight whatever for the jury. If the evidence as to the driver’s discharge bore at all upon any question which the jury had to decide, it would be upon the ground that, the discharge was in the nature of án admission that he was careless at the time of the accident.

We are quite unable to see that a discharge from employment a year after this runaway could have •possibly influenced the jury one way or the other upon the question of care, or want of care, in respect to the accident in question.

If the discharge had immediately followed the injury, it is possible that the jury might have been influenced by the inference that he was discharged because he was careless; but proof of the discharge a year afterwards, without in any way connecting it with the circumstances of the accident, could not, as we look at it, have influenced the jury in any substantial manner upon questions which it had to decide. A hundred things may have happened during the year to cause the discharge.

It may have been that he was discharged because he was profane, or because he demanded more pay or less hours, or because he advised co-employés to demand more pay or less hours. It requires no greater stretch of imagination to connect the discharge with one of these things than it does to connect it with the accident. The conclusion therefore is that, while the admission of the evidence' of discharge involved technical error, it was so immaterial and shadowy in respect to the questions of fact which the jury was to decide that it should be treated as harmless.

The doctrine of harmless error, which seems to be a growing one in the evolution of law, apparently does not offend the idea of a fair trial.

A collateral thing, connected immediately with the time or thing in question, may sometimes be treated as not remote, and admitted as something having a tendency to show where the fact is; but, on the contrary, the same thing may be so remote in point of time or nature as to be wholly immaterial and inadmissible, because if admitted it would have no weight, and if excluded would do no-harm, and under such circumstances, if its admission involves technical error, it may be treated as harmless.

The whole theory, of course, is that the trial, under such circumstances, is a fair one, because the result, after all, is uninfluenced by the technical error with respect to a thing not having substance. If we were persuaded that harm had been done in this case, or if we ,had any substantial doubt upon the •question, we should feel bound to direct a new trial; but, upon the whole, we cannot see that we have a substantial doubt. There was a long trial before a jury.

The plaintiff called a witness who saw a team, which it is true she did not identify as Armour’s team, but one which she described as “a yellow team with black marks on it, black letters” ; a gray horse and yellow wagon. The witness further testified that • she saw it drive up Felton and Williams streets; and that she saw the driver throw the reins over the horse’s back and go into a saloon, leaving the horse unfastened. It was not so much a question of identifying the man as the team.

The substantive weight of the'evidence came from the fact that she saw a driver, not a particular driver, and that the driver left the horse unfastened, and that, while the driver was in the saloon, the horse ran like a flash down Williams street. As we have already pointed out, it was not so material to identify the man as the team, with the gray horse and the yellow wagon with black letters, in a runaway down Williams street. Another witness, Addie M.

Hagar, who heard a disturbance and went to the door recognized the large heavy team of Armour’s in collision with the buggy in which the plaintiff was sitting, and in a few moments Mr. Cunningham, the superintendent, was' at the scene of the accident, and recognized the team as. one belonging to Armour & Co. True, as argued, the witness who described what, occurred, when the horse was left in the street unhitched, and what occurred as the horse started, did not recognize the driver at the trial, but she did describe the horse as gray, and the wagon as yellow with black marks and letters.

It is also true that she could not see that Armour & Co.’s name was on the wagon, because she could not read, but the fact that she could not read made the question of identity through a description of the color of the horse and the wagon none the less reliable and effective, and* if her description did not fix the identity, it was easily open to attack.

The train of circumstances unexplained — the gray horse and yellow wagon with black letters, at the curbstone, with the reins thrown over the back of the horse, the same witness or witnesses seeing the same team in a start from the curbstone in a runawa5r, and a team of the sam'e description, seen by other witnesses, involved in a collision which caused the injury — makes the case a strong one for the plaintiff, and we do not think the technical error at all changed the result from what it would have been if the technical error had not been made.

Therefore it would not seem to conserve justice to disturb the verdict. The chances are very decidedly in favor of the idea that, if a new trial was had, at the expense of time and money, the result would be the same. The judgment of the Circuit Court is affirmed, and the defendant in error recovers costs in this court.