Cincinnati Tract. Co. v. Cocoran ( 1928 )

This cause comes here on error to the court of common pleas of Hamilton county.

Marie Corcoran, who was plaintiff below, will be so designated here, and the traction company, which was defendant below, will be so designated here.

The petition below, filed January 10, 1917, alleged that on March 26, 1916, the plaintiff, then 14 years old, while a passenger in an automobile, was, through the negligence of the defendant, seriously injured as the result of a collision, at a street intersection in Cincinnati, between said automobile and a street car operated by the defendant. The injuries complained of consisted of a cut in the right eyelid and the right eyeball, resulting in the destruction of the qualitative vision of the right eye, in addition to the permanent disfigurement of the ball of the eye, and leaving only what is known as quantitive vision — that is, she can see an object moving without being able to determine what the object is.

The negligence specified was that the street car approached the street intersection "at a very high and excessive rate of speed, and without ringing a gong or in any other way giving notice or warning of its approach, and that said street car, so being operated by said defendant, was negligently and carelessly driven upon and against the said automobile in which plaintiff was a passenger."

The defendant, in its answer, admitted that the collision had taken place, but denied the other allegations of the petition, and averred that the collision was due solely to the negligence of the driver of the automobile.

At the trial, in May, 1927, a verdict for $10,000 was returned in favor of the plaintiff. The defendant prosecutes error from the judgment entered on that verdict, urging (1) that the verdict is not sustained by sufficient evidence, and is contrary to the law and the evidence; (2) that the damages awarded are excessive; and (3) that the trial court erred in giving a certain special charge to the jury.

The accident occurred at between 8 and 9 o'clock on a Sunday morning, when a large touring car, owned and operated by plaintiff's father, John Corcoran, was being driven westwardly into Colerain avenue from Elmore avenue. The plaintiff was in the front seat of the automobile, at the right of her father. Her eye was cut by the shattered glass of the windshield.

The street car was moving southwardly along Colerain avenue at the time of the collision.

There is evidence for plaintiff that the street car was approaching the street intersection at a speed of 40 miles an hour, without sounding any gong; that such speed was excessive; and that because of said speed, Corcoran, who was driving at 15 or 20 miles an hour, was unable to swerve his automobile from the path of the street car in time to avert the collision.

Defendant introduced evidence that the street car was traveling at a speed variously estimated at between 7 and 20 miles an hour, accompanied by continuous clanging of gong, and that the automobile literally ran into the side of the street car.

After the collision the street car traveled a distance variously estimated by different witnesses at between 35 and 200 feet. There is evidence tending to show that the motorman was not keeping a proper lookout, and did not have his car under proper control.

We are of the opinion that the jury might reasonably conclude from all the evidence that the negligence of the defendant was a proximate cause of the injury.

There is evidence that the injured eye, besides being itself almost useless, actually interferes with the vision of the other eye. The eye was submitted to three surgical operations. The jury was justified in believing that the plaintiff suffered considerable pain from both the original cut and the subsequent surgical operations. We cannot say that the damages assessed were excessive.

On cross-examination, John Corcoran, testifying for the plaintiff, was asked whether immediately after the accident he had not patted the motorman on the back and said: "When you make your report, you tell them you are not at fault. It is my fault." He denied that he had ever made that statement, or any other statement, to either the motorman or the conductor.

The defendant introduced the testimony of Dwyer, the conductor, and Steele, the motorman of the street car, to the effect that Mr. Corcoran had made the statement referred to, in practically the words quoted above, immediately after the accident. At the request of the plaintiff, the following special charge was read to the jury before the argument:

"Certain testimony by defendant's witnesses has been introduced to the effect that John Corcoran, the driver of the automobile, made certain statements some time after the accident. This testimony is not proof of the truth of the statements, but can be considered solely for the purpose of impeaching John Corcoran as a witness and affecting his credibility."

Counsel for the defendant admit that, according to the weight of authority, the testimony as to the prior self-contradictions of Corcoran was admissible for the sole purpose of affecting Corcoran's credibility as a witness. Wigmore on Evidence, Section1018, and authorities there cited. In Charlton v. Unis, 45 Va. (4 Grat.), 58, it is stated at page 60:

"Such testimony of inconsistent statements is admissible only for the purpose of impeaching the credit of the witness, but cannot be received as evidence of any fact touching the issue to be tried."

In Hand v. The Elvira, Gilp., 60, Fed. Cas., No. 6015, it is stated:

"If a witness at another time has given an account of a transaction different from that given at the trial, he may be impeached by proving what he has said at another time, on the question of his credit; but you cannot substitute the other account in the place of that which you have discredited, making it thus the evidence of the cause."

In Southern Ry. v. Gray, Admx., 241 U.S. 333, 36 S. Ct., 558,60 L. Ed., 1030, the court says:

"Of course the contradictory statements can have no legal tendency to establish the truth of their subject-matter."

In Gould v. Norfolk Lead Co., 63 Mass. (9 Cush.), 338, at page 347, 57 Am. Dec., 50, the court said:

"But it is no evidence whatever that the facts are as he formerly stated; and, though appeals are sometimes made to a jury that it is so, it is the province of the court to inform them that it is not so."

In Kent v. State, 42 Ohio St. 426, Judge Okey, at page 434, says:

"It is, however, the duty of the court, in all such cases, to state to the jury the only purpose for which such evidence can be regarded."

It is contended, however, that the special charge as given was prejudicial to the defense, in that it contained the hint that the testimony of Steele and Dwyer did not tend to prove that Corcoran made the alleged statements.

We are of the opinion that the charge complained of was correct, and not open to the construction suggested by the defendant.

Finding no errors in the record that were prejudicial to the defendant, we affirm the judgment of the court of common pleas.

Judgment affirmed.

HAMILTON, P.J., and CUSHING, J., concur.