Llewellyn v. Cincinnati Street Railway Co. ( 1940 )

The principal error complained of is that the court refused to permit comment on the failure to produce an available witness.

The law undoubtedly is that if it appears from the evidence that a litigant knows of the existence of a witness and such witness is within the control of the litigant whose interest it would naturally be to produce him, and without satisfactory explanation he fails to do so, the jury may draw an inference that the testimony of the witness would not have been favorable to him. Stocker v. Boston Maine Rd., 84 N.H. 377, 151 A. 457,70 A.L.R., 1320; 10 Ruling Case Law, 884, Section 32; 20 American Jurisprudence, 192, Section 187; 17 Ohio Jurisprudence, 105, Section 84. And, of course, if the jury would be justified in drawing the inference, counsel would be within the limits of legitimate argument in urging the jury to draw it.

But, for the rule to apply, it must appear that the witness was under the control of the litigant failing to produce him. That element is lacking in this case. All that appears is that an unnamed and unknown woman assisted the plaintiff to the sidewalk immediately after she fell or was thrown from the streetcar. There is no evidence that the plaintiff knew her name, her residence, or anything else about her, or had the means of ascertaining any such information. Under such circumstances, no inference can be drawn that the production or non-production of this witness was within the control of the plaintiff. No inference, therefore, could be drawn that her testimony would not have been favorable to the plaintiff.

We find no error in this record.

The judgment is affirmed.

Judgment affirmed.

HAMILTON, P.J., MATTHEWS and ROSS, JJ., concur.