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therein stated were fresh in Ellis' memory; and as he examined the same before it was signed by the district judge, and made suggestions of amendments, he was in condition to say whether he believed it correct. We think he had the right to rely upon the bill of exceptions, which he assisted in preparing, the same as if it were the minutes of the testimony of the deceased witness taken by him upon the former trial. And in Railroad Co. v. Keep, supra, it was decided that “the written memorandum taken at the time the deceased witness testified in the suit between the same parties may be read in evidence. The correctness of such memorandum may be disputed, and the jury must pass upon it." In Stern v. People, supra, nothing was offered in evidence excepting the bill of exceptions, purporting to give the testimony of the deceased witness. The evidence was properly ruled out because it was not certified to by oath of any witness, and there was no person to be cross-examined as to the accuracy of the bill. In Halsey v. Sinsebaugh, 15 N. Y. 485, it was decided that
"The minutes of the testimony of a living witness, taken by counsel upon a former trial, who produces them and swears he has no doubt of their correctness, but has no recollection independent of the minutes, may be read by him to impeach another witness."
In that case SELDON, J., says:
"It is well known that the efforts of memory are seldom equal to the task of recollecting evidence any considerable lapse of time, even the exact substance of words and phrases, while it would be comparatively easy at the time, or immediately afterwards, to make a correct record of their import. To exclude such a record, when shown to have been honestly made, would be to reject the best, and frequently the only, means of arriving at the truth."
Another objection is that Ellis was not a proper witness as to Burkholder's testimony on the former trial because, it is alleged, that upon cross-examination it appeared testimony was given by Burkholder upon the former trial which Ellis did not remember. It was held in Gannon v. Stevens, 13 Kan. 447. That "it is sufficient to prove the substance of what a deceased witness testified to on a former trial, and it is not necessary to prove his exact words." Now, while it is contended that upon cross-examination Ellis qualified his general statement given on direct examination that Burkholder testified in substance thus and so, it is clearly evident from reading all the crossexamination that Ellis gave the substance of the testimony of Burkholder upon every subject about which he testified, or which he was called to prove, and his testimony was sufficiently positive as to what Burkholder had testified to on the former trial to make it competent. Carrington v. Ward, 71 N. Y. 364; Blake v. People, 73 N. Y. 587; Hepler v. Bank, 97 Pa. St. 420. In the case of Harrison v. Charlton, 42 Iowa, 573, cited, the witness testified he could not remember the testimony given by the deceased witness upon cross-examination; therefore he was held incompetent. In this case the bill of exceptions which Ellis read, and from which he refreshed his recollection, contained, not only the direct examination of Burkholder, but also his
cross-examination, his redirect examination, and his recross-examination; and, in connection with the bill of exceptions, Ellis testified that "he knew in a general way, and in nearly all particulars, the record of Burkholder's testimony was, when originally prepared, substantially correct, and that he made this statement from what, when the matter was fresh in his memory, he believed to be true." He explained his expression "that the bill of exceptions did not contain all his (Burkholder's) testimony," to mean "it did not contain all the words of his (Burkholder's) testimony, nor his exact words; but that it was the substance of all Burkholder testified to upon the subjects which he (Ellis) was called to prove."
On November 18, 1879, the day before the injury complained of, there was a collision between the hand car upon which Jones rode on November 19th and one of the others. The collision was violent enough to shatter the lifting-handles of the car. It was the contention of Jones that the handles were fractured by the collision, and that the railroad company was negligent in not giving them proper inspection. It was shown by the evidence that the handles which broke with Jones on November 19th were worked back to Beloit, on the evening of November 18th, just after the collision, and that Creagan was the foreman in charge of the hand car; and the railroad company contended that such use was equivalent to a reasonable inspection of the handles. Creagan, the foreman in charge of the hand car was asked by the company: Questions. "When these cars came together had you any reason to apprehend that the lever-handles had sustained any injury?" and also: "When these cars came together did you suspect that the lever-handles had been injured, or could be injured, by such collision?" Subsequently the company sought to show by O'Riley, who had general charge of the hand car, and had had charge of hand cars like it ever since he came on the road in 1878, and of hand cars generally since 1857, that if, after the collision, the hand car was worked by the lever-handles a mile and a half back to Beloit, carrying 10 or 12 men, with their tools, such use was equivalent to an inspection of the handles, and that after such use no other inspection was necessary. Similar evidence was sought to be introduced by other witnesses, who claimed to be experts in that regard. The handles were simple pieces of wood surrounded at two places with iron bands holding them together, and we do not perceive that any expert testimony regarding them was necessary; at least, there was no error in the rejection of the testimony offered. The witnesses testified what occurred after the collision, and all that was done by Creagan and the other employes upon the car; and E. C. Smeed, the chief engineer of the Kansas Pacific, was permitted to testify as follows:
Question. Take the hand car,-what inspection is necessary, and how is it performed? Answer. Look it over, and take hold of it, and feel it, and see if you can feel anything that is weakened, and give it a general looking
See if the car has been disarranged out of a square, striking on one side. Look it over and see if there is any apparent weakening of the car. I think that is all the inspection that would be necessary,-it is all the inspection that would be necessary. Q. Is that all that is usually given? A. Yes, sir."
He was also permitted to state what he considered a test of any part of the car. It is the general rule that witnesses must speak the facts, and they are not allowed to give their opinions unless they are experts, and then only upon questions of science and skill. Monroe v. Lattin, 25 Kan. 351. It was competent for Creagan to speak as to all the facts relating to the handles, and to his own acts, and the acts of the other parties upon the hand car after the collision; but the particular questions asked him were properly ruled out. The court charged the jury as to the inspection of the handles of the hand car as follows:
(10) The jury are instructed that it is the duty of a railroad company to make reasonable efforts to supply to its employes safe and suitable machinery, tools, and appliances for their use in and about its employment; and also, after having so supplied the same, it is its duty to make reasonable efforts to keep such machinery in a safe and serviceable condition, and to that end must make all needed inspections and examinations.
(18) If the jury should believe from the evidence that the working handle of the hand car which broke with Jones was injured the day before in the collision, then the jury are instructed that the mere fact, if it was a fact, that such injury so caused by such collision was not apparent to the eye would not relieve the employer from the duty of inspection, if the nature of the patent injuries and the force and circumstances of the collision were such as to indicate that latent injuries had been caused by such collision if, in fact, such latent injuries could have been discovered by a proper inspection.
(20) The jury is instructed that the defendant cannot relieve itself from any duty, if any duty it had, to cause an inspection to be made of the hand car by showing that some employe or employes, who had no duty to perform in respect to the hand car, did not suspect that the same was injured, or had any undiscovered defect, even though such employe or employes had as good or better means of knowledge in regard to the condition of the hand car as the person or foreman whose duty it was to make any needed inspection of it had. It is for the jury to determine from all the evidence and circumstances whether ordinary prudence required an inspection of the hand car after the collision and before again using the car.
(15) If the jury find from the evidence that the hand car in question was suitable for the purposes for which it was designed and used, if it collided the day before with another hand car, in which condition it is alleged that the lever-handles became fractured, and at which supposed fracture one of them afterwards broke in the hands of the plaintiff, whereby he was injured; yet, if the jury believe from the evidence that the fracture of the handle was within and under the loop of iron in which it was placed, and not in view, and that said car, after the collision, was operated, and the handles used, with a load a mile or more on an up-grade, and that the handle during such operation was to all appearances firm and unbroken, and that one or more who had witnessed the former collision had no apprehension that the lever-handle was injured in such collision,-if such facts are proved, it is for the jury to say from these, and all other evidence and circumstances in reference thereto, whether the party operating said car ought to have reasonably supposed that there was a latent fracture of the handle within the loop, and it is also for
the jury to say whether it was the duty of the party to reasonably apprehend that there might be such latent fracture.
(15) If the handle which broke with Jones was worked back to Beloit on the evening of the collision from the place of the collision, with the knowledge of the foreman in charge of said hand car, and if in the opinion of the jury such was equivalent to a reasonable inspection of said handle, then the jury are instructed that no special inspection of said handle was necessary after such use.
(25) If the handle of the car had been fractured the day before within the loop of the iron in which it was held, so as not to be discovered "in the exercise of ordinary care" by the parties directing the plaintiff and the use of the ear, and if the same was unknown to such parties, there was no fault in them in not discovering that the handle had been fractured.
(27) If the jury believe from the evidence that the hand car upon which the plaintiff was injured was in all respects of the same make and pattern as respects kind and quality of timber, material, and construction as the other hand cars used by the company operating the railroad, and if such other hand cars in use were found to be in all respects proper and suitable, then the jury have the right to presume, and ought to find, that the car, when brought upon the road and furnished the employes for use, was good and sufficient; and, although it is alleged, and testimony has been given, that the hand car in question collided with another hand car with more or less violence on the day before the accident to plaintiff, yet such fact will not vary the case, and create a liability upon the company operating the hand car, unless it is shown. that the collision fractured the handle which broke with plaintiff, and that the company had notice that the handle was injured, or that the servant or agent of the company whose duty it was to look after the car had, or reasonably ought to have had, such notice.
The railroad company requested the court to instruct the jury as follows:
"No suspicion attaches to the testimony of any witnesses because they are the servants or agents of the Union Pacific Railway Company. They have no such interest as requires them to be dealt with differently than any other witnesses in the case.'
We think that this instruction was properly rejected. The case cited to sustain the instruction is Railroad Co. v. Kirkwood, 45 Mich. 51; S. C. 7 N. W. Rep. 209. In that case the trial court told the jury if they found it necessary to consider the testimony given by the agents or employes of the railroad they should bear in mind the interest they have in protecting the company and shielding themselves from blame. That case is no authority for the instruction refused. A trial court ought not to suggest to a jury that the servants or agents. of a corporation, who are called as witnesses, have any such interest, simply because they are servants or agents, as affects their testimony. There was no legal presumption against the testimony of the servants or agents of the railroad company simply because they were such servants or agents; and special instructions that they have an interest or no interest in the case sufficient to affect their testimony are wholly unnecessary.
Great complaint is made of the answers of the jury to several of the special findings. It is said by counsel that some of the answers.
of the jury are not true, and others evasive and unsatisfactory. The answers generally complained of are those regarding the constructing of the railroad from Minneapolis to Beloit, and as to whether the Kansas Pacific Railway Company had in its employ, at the time of the injury complained of, O'Riley, Creagan, Smeed, Mallision, and others to superintend and work upon the construction of the road. Counsel, in the arraignment of the jury, seem to forget that although the Kansas Pacific was the real builder and owner of the road, yet the president of the Solomon Railroad Company appeared as the active agent in the execution of the work, employed parties upon the construction, and had the general charge thereof at the time Jones was employed, and for more than a month thereafter. It is apparent that the jury answered many of the special findings upon the theory that the Kansas Pacific constructed the road in the name of the Solomon Railroad Company; or, rather, that the Kansas Pacific was the backer of the Solomon Railroad Company, and furnished that company men, money, materials, etc., for the construction and operation of its road. Hence the findings of the jury regarding the construction of the road and the employment of superintendents, foremen, and other persons, must be viewed in that light. The question is whether there was sufficient evidence before the jury to sustain this theory. D. D. Hoag, who was secretary of the Solomon Railroad Company at the time the road was constructed from Solomon City to Beloit, testified, among other things
"That he did not know whether Mr. Edgerton attended to the construction of the road as president of the Solomon Railroad Company or as contractor; that after the road got to Minneapolis Edgerton turned it over to S. T. Smith, the general superintendent of the Kansas Pacific, but Edgerton seemed to have the general management over the employes of the Kansas Pacific as long as he stayed upon the road; and that he stayed there until the road was completed beyond Delphos, some fourteen miles from Minneapolis; that he knew that Edgerton held the contract for constructing the road, but he did not know who was doing the work."
James R. McClure, Esq., one of the directors, and vice-president of the Solomon Railroad Company from its organization to the completion of the road to Beloit, and the legal adviser of Mr. Edgerton, and also the attorney of the company up to the completion of its road to Beloit, testified
"That the road was completed to Beloit by Mr. Edgerton; that it was generally understood that Mr. Edgerton built the road; and that it was generally known throughout the length of the road that Mr. Edgerton was the president of the Solomon Railroad Co."
E. C. Smeed, the chief engineer of the Kansas Pacific Railway Company at the time the Solomon railroad was constructed, testified"That D. M. Edgerton was never his superior officer on the Solomon road; that he [Smeed] was employed on the work of building the road from Solomon City to Minneapolis; that he laid out the entire line for the road; and that he had the control and did all the work on the Solomon line for the Kansas Pacific; that while the work was being constructed from Solomon City to