Opinion
(Filed 25 September, 1907.)
Evidence, Corroborative — Employer — Jumping from Engine — Self-preservation — Extent of Injury — Damages.
In an action against defendant railroad company to recover damages for injuries alleged to have been sustained by plaintiff, its fireman on its engine, on account of being compelled, for self-preservation, to jump therefrom immediately preceding a collision with another train on defendant's track, wherein the defendant denied the necessity for plaintiff's jumping and the extent of the injuries alleged, evidence of the speed of the engine and the conditions of the wrecked engine and cars is competent upon the questions of the necessity for plaintiff's jumping and of the extent of the injury, being corroborative of the plaintiff's evidence thereon.
ACTION to recover damages for personal injury, tried before Lyon, J., at March Term, 1907, of HALIFAX.
From the judgment rendered, defendant appealed.
Daniel, Travis Kitchin for plaintiff.
Day, Bell Dunn and Murray Allen for defendant.
The defendant admitted the negligence and its liability (96) for damages, and excepted to the introduction of certain evidence admitted by the court upon that issue.
It appears that the plaintiff was a fireman on defendant's engine, and sustained personal injuries, claimed to be of a severe character, in being compelled to jump from his engine immediately preceding a collision with another train on defendant's track. The court permitted plaintiff to prove the speed at which the engine was running when the plaintiff jumped, to which defendant excepted. We can see no error in this, as it tends to prove that the plaintiff was compelled to jump under circumstances calculated to cause injury. It tended to corroborate the testimony of the plaintiff that he had in reality suffered an injury, and was not feigning one.
The defendant offered evidence of two physicians to the effect that they had examined the plaintiff, and that, in their opinion, he had sustained no substantial injury, and was feigning. The exact question was decided in New York by the City Court of Brooklyn, before Clement, C. J., and Osborne, J., in 1891. Gillespie v. R. R., 16 N.Y. Supp., 850. The Court says: "We think that the plaintiff had the right to prove the speed of the car. Such proof would have a tendency to show the violence of the fall of the plaintiff."
His Honor permitted evidence to be given over defendant's objection as to the effect of and circumstances attending the collision. It is contended by defendant's counsel that, as this happened after plaintiff jumped and after his alleged injury was sustained, the evidence should have been rejected as immaterial and as calculated to unduly excite and prejudice the jury against the defendant. It is unnecessary for us to attempt to lay down here any rule governing trial judges as to how far it is proper to go into the circumstances attending an injury, when the issue of damage is solely before the court. We agree with the learned counsel for the defendant that it would be highly improper to admit immaterial and unnecessary evidence, which can throw no possible (97) light upon the issue before the jury, and which is calculated only to prejudice and inflame their minds.
We find no evidence in the record, and none has been pointed out to us in brief or argument, calculated to prejudice a jury or to make them swerve from the path of impartial duty. No one was killed, maimed, or hurt, so far as we can discover, except the plaintiff. The objectionable evidence offered related solely to the condition of the engine from which plaintiff had jumped, after the collision had taken place, and also tended to prove that seventeen cars were derailed and that one box car was on top of the engine as it lay in the ditch. The collision occurred because the plaintiff's engine ran into and telescoped a freight train which was preceding it on the track. The conditions given in evidence were such as any one would be likely to suppose would naturally result from such a collision, and had no tendency to unduly inflame the jury or divert their minds from the only issue they were called upon to decide. In this particular case the badly wrecked engine tended to prove that it was running at a rapid speed, and, as we have said before, that tended to corroborate the plaintiff as to the bona fides of his injury by proving that he was compelled, in order to save his life, to jump, under circumstances calculated to produce great bodily harm.
As the exceptions to the charge are not presented in the brief, and were not pressed on the argument, we will not discuss them, except to say that they cannot be sustained.
No error.
(98)