Plumlee v. St. Louis Southwestern Railway Co. , 85 Ark. 488 ( 1898 )

Hart, J.,

(after stating the facts.) 1. No exceptions were saved to the instructions of the court, and therefore, by a ■familiar rule of practice, error, if any occurred, was waived. Ray v. Light, 34 Ark. 421. There was sufficient testimony to support the verdict of the jury. This disposes of the first five assignments of error.

2. The 6th, 7th, '9th, 10th, nth, 13th, and 16th assignments of error are not well taken.

“The general rule is that the doctrine of surprise does not apply to the testimony of- witnesses of the opposite party, nor to evidence introduced by such party, where the same tends to support the issues joined, and such as might reasonably have been anticipated.” Petty v. State, 76 Ark. 519. The ground of surprise by the evidence of Watkins, Peel and Huddleston seems to consist in the fact that their evidence tended to contradict the evidence of the plaintiff’s witnesses. This might have been reasonably expected. True, these witnesses were not present'and did not testify at the former trial. But there is no rule of law to confine parties to the same witnesses and to the same testimony .on the second as on the first trial. All that is required is that the testimony be confined to issues raised by the pleadings, and that was done in this case.

3. The surprise in the testimony of Ed Roland consists in the contention that there was a difference in the testimony in the two trials as to the speed of the handcar at the time of the accident. The only purpose of the newly discovered evidence was to impeach his credit as a witness, and this has been repeatedly held not to be a ground for a new trial in such cases. Minkwitz v. Steen, 36 Ark. 260; James v. State, 72 Ark. 404, and cases cited.

4. Error is assigned because the court did not allow plaintiff to lead the witness, Thompson, and because the testimony of Morgan, mentioned in 7th assignment, was excluded from the jury. An inspection of the record shows that the plaintiff was examining the witness Morgan by asking him leading questions, and the court only- stopped that form of examining the witness. It is within the discretion of the trial court to permit or not to permit a party to ask his own witness leading questions. Wallace v. Bernheim, 63 Ark. 108; Scott v. State, 75 Ark. 142. We do not think the court abused its discretion in that regard.

5. Error is assigned because the court did not permit the witnesses to state generally that the car was in bad condition. The record shows that this was excluded as being the opinion of the witnesses. Hence the ruling of the court was correct, for the facts upon which the opinion was based could have been adequately described to the jury by the witnesses without expressing their opinions. Continental Casualty Co. v. Todd, 82 Ark. 215; Tiffin v. St. Louis, I. M. & Sou. Ry. Co., 78 Ark. 55; Railway Co. v. Yarborough, 56 Ark. 612. The record shows that the court permitted the witnesses to fully describe the condition of the car, and only excluded general statements which merely amounted to an expression of opinion.

6. It is contended that the court erred in not allowing plaintiff to refresh witness O’Rear’s mind by reading his former statement. The record on this point is as follows: “Question by the court: You say Mr. Parker read that evidence over to you when.? A. He read it over to me yesterday evening. Mr. Parker, plaintiff’s counsel, (resuming) : Question. In reading it over yesterday, you admitted what was read to be true, didn’t you? Defense objects to t'he manner of questioning the witness. Plaintiff asks permission to read to the jury witness’ testimony in the former trial. Objected to by the defense.” The court was right in not allowing the testimony of the witness taken at a former trial to be read to the jury, the witness being present at the trial. Railway Co. v. Sweet, 60 Ark. 550. It can not be claimed that it was offered to refresh the recollection of the witness; for the whole of his testimony taken at the former trial was asked to be read to the jury. This was asking it to be considered as independent testimony. Phoenix Ins. Co. v. Public Parks Amusement Co., 63 Ark. 187.

At a subsequent term of the court, appellant filed a petition for a rehearing, but substantially the same grounds are alleged as are given in the two motions for a new trial filed at the term of the court at which the case was tried. The main contention of appellant for a new trial is his surprise at the appearance of Watkins at the trial, and the contradictions to his testimony discovered after the trial. Watkins’s testimony was directed to the issue joined by the pleadings, and was but cumulative of the testimony adduced by the defendant at the first trial, and the newly discovered testimony only goes to the impeachment of his credibility as a witness. Watkins’s testimony being merely cumulative of the testimony adduced at the first trial, the motion for a new trial does not come within the rule announced in Mutual Life Ins. Co. v. Parrish, 66 Ark. 612.

Judgment affirmed.