Philadelphia, Baltimore & Washington Railroad v. Diffendal ( 1909 )

The appellant has filed a motion for a re-argument in this case and assigns as its chief reason in support thereof, that the evidence of Hugh R. Scott, an employee of the initial carrier, as to the time when the car containing the peaches reached Fulton Station, was improperly admitted.

Scott testified that his record showed that the car arrived at 6.30, and was delivered to the defendant about 8.20 Sunday, October 1st. That he was on duty at that time and delivered all cars. That he saw this particular car backed over to the defendant's road.

He further testified that he refreshed his memory by referring to his book, and that he would have to refer to his record in order to state the time when the car arrived and when it was delivered to the defendant.

The witness also stated that of his own personal knowledge outside of his record, that as near as he could tell the car was delivered to the defendant about 8.20 Sunday, October 1st, but of course his testimony on cross-examination, as already indicated, shows that he was obliged to refresh his recollection from his book. And this is all the law requires.

If the witness swears that he made the entry or memorandum in accordance with the truth of the matter, as he knew it to exist at the time of the occurrence, of which he is at the time of the trial still convinced, he may use such memorandum to refresh his recollection; even where the memorandum does not awaken in the memory of the witness any recollection of anything contained in it, but nevertheless, knowing the writing to be genuine, his mind is so convinced that he is on that ground enabled to swear positively to the fact, the testimony will be received. Martin v. Good, 14 Md. 398.

Where the witness, after consulting the memorandum, remembers the facts and testifies from his own recollection of the same, it is of no consequence whether the paper used is the original memorandum or a copy thereof. 8 Ency. Pl. Pr., p. 140;Bullock v. Hunter, 44 Md. 416.

It would certainly be highly unreasonable to expect the employee of a railroad company, at one of its stations or terminals, to remember the day and the hour when every car arrived there, and when it departed, or was delivered to the connecting carrier, wholly independent of the records kept for that purpose.

We think the lower Court was entirely right in permitting this witness' testimony to go to the jury for its consideration.

The question of the measure of damages having been considered fully in the opinion already filed in this case, no further discussion on that point is deemed necessary.

We have examined the other reasons assigned in support of the motion for a re-argument, but find no sufficient reason for granting the motion, and the same will therefore be overruled.