KIRCHER v. ATCHISON CO

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District Court of Appeal, Second District, Division 3, California.

KIRCHER v. ATCHISON, T. & S. F. R. CO.

Civ. 15343.

Decided: July 29, 1947

Robert W. Walker, William F. Brooks and Wallace L. Ware, all of Los Angeles, for appellant. Max Fink and Jerome D. Rolston, both of Los Angeles, for respondent.

This is an appeal by the Atchison, Topeka and Santa Fe Railway Company from a judgment after verdict, in the amount of $60,000, awarded plaintiff as damages for the loss of his left hand under defendant's train at its station in Santa Ana. The complaint charged negligence, in that defendant maintained and conducted its said station and operated a passenger train over and upon the depot passenger platform in a negligent manner. The answer consisted of denials and a plea of contributory negligence.

The grounds of appeal are (1) that plaintiff was a mere licensee and that there was no evidence of active negligence on the part of defendant; (2) that there was no evidence of negligence upon the part of defendant in maintaining the premises; (3) that it was demonstrated by the evidence that it would have been physically impossible for plaintiff's injuries to have resulted from the negligence with which defendant was charged; (4) that plaintiff's injuries were conclusively shown to have been the result of his own negligence; (5) that a new trial should have been granted upon the ground of newly discovered evidence, and (6) that the award of damages was excessive.

At the time of the accident, November 14, 1943, plaintiff was 23 years of age. He had been in training as an aviation cadet since December 12, 1942, he had married in that month, and was stationed at the Santa Ana Army Air Base at the time of the accident. He had gone to Los Angeles November 13 with a fellow cadet, one Harper, and they had met another cadet named Hannan, with whom they did some shopping and had dinner at about 9 p. m. They then separated and plaintiff left Los Angeles for Santa Ana on a Pacific Electric train at about 10:23 p. m., arriving at Santa Ana at about 12:15 a. m., November 14. Expecting Harper and Hannan to return to Santa Ana on the Santa Fe train (No. 70) which left Los Angeles about midnight and arrived at Santa Ana about 2 a. m., plaintiff went from the Pacific Electric depot to the Santa Fe depot a few blocks away to await their arrival. Plaintiff's testimony was that the train arrived from the north, that he looked for his friends toward the front end of the train, and started to jog north toward the rear of the train, looking through the windows on the west side of the train; that his left foot went into a hole or depression in the pavement some three feet wide and several inches deep, he stumbled and his his head against a blunt object, being rendered unconscious thereby, and that he remembered nothing of what happened thereafter until he came to and discovered that the wheels of the train had run over his left hand.

The first question in order is whether plaintiff was an invitee of defendant, or a mere licensee upon its premises. Shortly after he arrived at the station he went to defendant's check room and left with the attendant a suit box containing some of his clothing, and a small handbag. He was asked by the attendant if he was leaving on a train, replied that he was waiting for friends, and was told by the attendant that it would not be necessary to check the articles, but they would be placed behind the counter for him, and this was done. Plaintiff then wandered about the premises, passed to the east across all the tracks and spent some time in a station park before the arrival of train No. 70. The several tracks are approximately 15 feet apart, and will be referred to by numbers, west to east. From the station building asphalt pavement, flush with the rails, extended across tracks 1 and 2 and for some three or four feet east of track 2. East of the asphalt pavement was nine feet of brick pavement, extending to within two feet of the westerly rail of track No. 3, the main line track, and east of that were two other tracks and then the park premises. The area east of track 3 was not paved, the tracks extended above the ties, and passengers were not allowed to enter or leave trains on that side. Train 70 came in on track 3. It was composed of an engine and 11 coaches. Plaintiff testified that when the train came to a stop, he and several other persons walked easterly across the paved platform toward the head coach, and that it was while he was jogging north from this point that he suffered his accident. He was undoubtedly in an area which was maintained for the use of passengers and the public, including those who might come to the station to meet incoming passengers or to attend the departure of others.

It is defendant's contention that a railway company extends no invitation to those who come to the station premises for the sole purpose of attending upon the arrival or departure of passengers and for purely social reasons; they are merely licensees, to whom the railway owes no duty to maintain the premises in a safe condition and has no liability except for active negligence. It has been held that one who visits railway premises for such purposes is not an invitee, but the great weight of authority supports the rule declared in Restatement, Torts, Comment d, section 332: ‘Thus those, who go to a hotel to pay social calls upon the guests or to a railway station to meet passengers or bid them farewell, are business visitors, since it is part of the business of the hotelkeeper and railway to afford the guest and passengers such conveniences.’ Many supporting cases are listed in 13 C.J.S., Carriers, § 722, page 1351, and in 10 Am.Jur. 80. Further discussion of the point is unnecessary. Plaintiff stood in the relation of an invitee. It is immaterial that he did not have an appointment or agreement with his friends to meet them, and also immaterial that they did not arrive as he expected.

In view of these conclusions, it is unnecessary to consider plaintiff's further argument that the maintenance of a service for checking parcels was an invitation to the public to use the station premises. It is also unnecessary to consider plaintiff's contention that defendant could have been found guilty of active negligence in the movement of its train.

The next question is whether the implied finding that the station premises were not maintained in a reasonably safe condition has support in the evidence. Some six weeks after the accident pictures of the station were taken by a photographer, a resident of Santa Ana, who testified that he had frequently used the station and was familiar with the surroundings. The photographs were received in evidence and the witness testified that they correctly reflected the general condition of the railroad station platform as of November 14, 1943. Eight of these pictures showed a hole in the pavement and the witness testified to seeing a number of others, having a depth of from two to seven or eight inches. He was questioned particularly about one hole, which we shall call the large hole, and testified that it was irregular in depth of from four to seven inches and about two feet square, and he indicated the location of a number of the holes with reference to the railway tracks. He indicated a point where there was a series of small, shallow holes from two to four inches deep close together within about a three-foot area. There were, altogether, nine places identified by the witness where the pavement was in a broken condition. The photographs also showed patches where the pavement had been repaired. Numerous witnesses, employees of defendant and others, testified to their familiarity with the condition of the platform and that they had not seen any holes in the pavement. Although the pictures were taken six weeks after the accident, the photographer testified that he had observed the holes in the pavement before that date, that the conditions were generally the same, and it was clearly within the province of the jury to determine the sufficiency of the evidence to prove that the condition of the pavement on the night of the accident was substantially as described by plaintiff's witnesses. It was also within the province of the jury to determine whether the condition of the pavement was such that it was not reasonably safe for the use of passengers and others under the conditions which obtained on the night of plaintiff's accident. Oles v. Kahn Bros., 81 Cal.App. 76, 81, 253 P. 158; DeGraf v. Angelo California Nat. Bank, 14 Cal.2d 87, 97 P.2d 899.

It is vigorously contended by defendant that plaintiff's accident could not have been caused by any defective or dangerous condition of the premises. The argument is that it was conclusively shown that plaintiff fell on the east side of the train, where there was no platform, where passengers or visitors were not supposed to be, and that he was therefore a trespasser. Specifically, it is claimed that plaintiff's injury was suffered on the east rail of track 3; this fact being established, it is argued that it would have been physically impossible for plaintiff to have fallen on the west side of the train so that his left wrist would have rested on the east rail and, further, that even if he could have fallen in that position if he had been close to the coach when he fell, he could not possibly have reached the position where he was injured if he had stepped into the hole described by the witnesses, which was some 13 feet west of the coach.

The argument in support of the claim of physical impossibility must be considered under the rule stated in Austin v. Newton, 46 Cal.App. 493, 498, 189 P. 471, 473: ‘Unless, therefore, we can say that, under the undisputed physical facts, the accident could not possibly have been due to defendant's negligence as alleged in the complaint, we must affirm the judgment. It is not sufficient that the story told by plaintiff and his witnesses may be improbable. It is for the jury or the trial judge to weigh and balance probabilities. We cannot reverse upon the ground that the finding of negligence is contrary to the evidence unless we can see that the fact as found contra-venes recognized physical laws, and that therefore it is impossible that the accident could have been due to the negligence alleged in the complaint.’

First, as to the point where the injury occurred, four witnesses for defendant testified to finding blood and particles of flesh on the easterly rail of track 3 and two of them, one a police officer, testified to finding a so-called ‘scuff mark’ on the unpaved ground near the blood on the rail, described as being one inch deep and about three feet long and which, it is argued, could have been made by the toe of a shoe of a person who had stumbled. The blood on the rail was located several feet to the north of the described hole in the pavement. One of the witnesses in question was a Santa Fe telegraph operator who had worked at the station for 21 years; another was a local station agent who had worked there for 12 years; another was a Santa Fe baggage and mail carrier, and the fourth a police officer. There was no evidence, circumstantial or otherwise, and plaintiff does not contend, that the injury occurred on the west rail.

We judge from the briefs that plaintiff's case was presented upon the theory that plaintiff probably stepped in the large hole which we have described, stumbled and fell against the coach and rolled under the train. We have found no evidence of an allegedly defective condition of the pavement nearer the third tracks. The precise question is whether plaintiff could possibly have fallen into this position if he stumbled in a hole that was some 13 feet away from the coach. He testified he was trotting some distance away from the cars in order to see into the windows and that he could and did see persons in the cars. In his testimony he had estimated his distance from the train at seven to nine feet, with the explanation that it was no more than an estimate, and also that it was his left foot which encountered the hole. Unquestionably a fall under such a circumstance would be most unusual and extraordinary, but our present question is whether it would have been a physical impossibility, or such a remote possibility as to be unacceptable to reasonable minds. Was it unreasonable for the jury to believe plaintiff's version of the occurrence? Defendant argues, plausibly, that if plaintiff's left foot went into the hole, he would have fallen away from the coach and not toward it. And it is also pointed out that even if plaintiff stumbled toward the train and across the brick platform, there was yet a two-foot space between the platform and the west rail, that this space was six inches below the platform and that the rail itself was 7 1/414 inches high. If we should hold that it would have been impossible for plaintiff to have fallen while running at a point 13 feet west of the train and to have stumbled underneath it, we would be required to reverse the judgment and it would be unnecessary to consider other aspects of the case. But we do not take this view of the facts. People can and do stumble, endeavor to maintain balance, and fall some distance away. The fact that it appears strange that plaintiff should have fallen as he described does not warrant our holding that he fell in some other manner. Many accidents occur in a strange and unusual way. Plaintiff's theory was not less plausible than that of the plaintiff in the recent case of Lavender v. Kurn, 1946, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916, in which the contention was rejected that the verdict in plaintiff's favor was unsupported except upon the basis of speculation. Although we say, without hesitation, that it would be extremely difficult for us to believe that plaintiff fell in the manner he described, this is not a sufficient answer, in view of the fact that our jurisdiction on appeal is limited to questions of law.

Considering alone the physical facts, we think we may not hold, as a matter of judicial knowledge of physical laws, that it would be impossible for a man running alongside a stationary railroad train to stumble and fall under the train between the rails, strike his head against an object with such force as to render him unconscious, and come to rest with his body between the rails.

As a ground of attack, distinct from that of impossibility, defendant argues that plaintiff's testimony was impeached by the physical facts, by self-contradictory statements and the testimony of other witnesses, and that it does not furnish substantial evidence in support of the verdict. Defendant sought to prove that it would have been impossible for the train to have passed over plaintiff's body without crushing it. Beneath the coaches are articles of equipment with clearance above the ground, as testified to by defendant's supervisor as follows: battery box, 22 inches; generator, 18 inches; air hose and steam connections, 18 1/212 inches; axles, 18 inches; brake shoe beams from one side of the coach to the other, clearance 5 1/212 inches above rails, the latter extending 7 1/414 inches above the ties. The distance between tracks is 4 feet 8 1/212 inches. Defendant's transit man located on a diagram certain of the mentioned equipment, so scaled as to indicate the height above the ground of the attached parts, and he testified that there was sufficient space underneath them, excepting for the air hose connection, to allow a coach to pass over a box 18 inches high and 4 feet 7 inches long lying between the rails. Another of defendant's witnesses testified that the lowest part of the air hose connection was approximately 14 inches above the ground, and another hose, the signal hose, was 21 inches from the ground. Plaintiff was a man of small stature. The evidence did not prove that it would have been impossible for the train to have passed over him if he had been lying flat upon the ground. Neither would it have been impossible for articles of the equipment underneath the car to have come into contact with his body and to have altered its position. We think it would not have been impossible for plaintiff's body to have been moved in this manner so that his left hand extended over the east rail.

Defendant further argues from the fact that plaintiff's hand was not entirely severed but was merely ‘dangling’, that it could not have been run over by the wheels of all three coaches and that therefore the train must have been in motion when plaintiff fell and he must have fallen under the wheels of the last coach, as otherwise the hand would have been completely severed. However, the jury may have believed that plaintiff's body was caught and moved by the equipment under the coaches so that his left hand was extended over the east rail, or that he may have moved his arm even though he was not fully conscious.

Defendant argues earnestly that plaintiff was otherwise successfully impeached, and that this court should hold for that reason that his testimony was unworthy of belief. Plaintiff did make statements to the effect that he had stumbled on a rock, but these statements were qualified by the further one that he did not known what caused him to fall. In his deposition and at the trial he testified that his left foot went into a hole. It was for the jury to weigh the uncertainties and contradictions in his testimony in judging of his credibility. It is also pointed out, as indicating the unreasonableness of plaintiff's conditions, that he now claims that he made a long, stumbling fall, but that he did not testify that he fell in that manner. Although plaintiff did not describe the exact manner in which he fell, the circumstance that he was rendered unconscious by a blow on the head, as he claimed, might reasonably have been believed to have caused some loss of memory as to the manner in which he fell. Further attacks upon his credibility consisted of the testimony of defendant's witnesses that plaintiff was not seen in the vicinity of the accident before it occurred, that all the curtains of the train were fully drawn, and conflicts between plaintiff's testimony and that of the defendant's witnesses in kindred matters. We must assume that the jury gave full credit to the testimony of plaintiff. Since it was not incredible, in the light of the entire evidence, the jury were not precluded from giving greater weight to it than was accorded the opposing evidence, whether direct or circumstantial. Taking all of these matters into consideration, we believe we are bound by the jury's appraisal of plaintiff's credibility and the implied finding that the accident happened as he testified.

It will appear from what we have said that we believe the jury could reasonably have accepted the theories of defendant as to the manner in which the accident occurred, but this concession is of no benefit to appellant. The decisions of fact of a jury are not the only ones accorded the litigants. The law gives the losing party the right to have the facts re-examined by the court on motion for new trial and it is to be presumed that the trial judge has seriously performed this important duty. Where such motion has been made and denied, an attack upon the sufficiency of the evidence to support the verdict is not upon the decisions of the jury alone, but upon those of the trial judge as well. In a case involving difficult questions of fact, as the present one does, it is proper for a reviewing court to accord considerable weight to the decision of the trial judge in denying the motion, since it implies that he has given thorough consideration to the evidence by which the facts have been developed and has determined that the verdict was not contrary to the preponderance of evidence. Even if we were of the opinion that the jury reached an erroneous conclusion, we would not be justified in reversing the judgment unless we could go so far as to say that the determinative question of fact was one upon which reasonable minds could not differ. After full consideration of the evidence, we have not reached that conclusion.

Plaintiff urges, as an independent ground of support for the finding of negligence, evidence which he claims would have justified a finding that the station area was so dimly lighted as to render it unsafe for pedestrians. Plaintiff introduced testimony of a witness who measured the light at different points with a photographic light meter. If we should grant that such tests had some evidentiary value outside the field of photography, we would be unable to see any relation of light meter measurements to visibility, in a practical sense. It is unnecessary to discuss the other evidence on the subject from the standpoint of plaintiff's claim that the station was inadequately lighted. There was nothing obscure about the holes in the pavement and we find nothing in the evidence to indicate that they were not plainly visible on the night in question. The manner in which the station was lighted is only a fact to be considered in connection with defendant's further claim that plaintiff was guilty of contributory negligence as a matter of law in failing to observe the condition of the platform upon which he was running. The facts already stated define the question to be answered: was plaintiff guilty of contributory negligence as a matter of law in jogging along the platform looking through the windows of the coaches and failing to pay enough attention to his footing to discover the hole in the pavement. The rules of law by which his conduct is to be judged are familiar. He was required to exercise ordinary care, and in determining whether he did so was to be accorded the right to assume that the station area was maintained by defendant in a reasonably safe condition. He was not bound to anticipate unsafe conditions and is not to be held to have had knowledge of them unless they were discoverable in the exercise of ordinary care. He was not running between tracks nor outside of an area which was maintained for the use of patrons of the railway and other pedestrians. We think it is not unusual for persons under such circumstances to hurry, or even to run slowly along railway platforms with their attention directed toward the cars of the train and to the points of entrance and exit. It is not to be expected that in the hurry that is often observed in railway stations, pedestrians will pay as close attention to what is under foot as they would in calmer moments and under other circumstances. We deem it unnecessary, in view of the facts already stated, to say more than that we believe the question of plaintiff's contributory negligence was one of fact for the jury, and not one of law. We must also accord weight to the decision of the trial judge upon this point in deciding defendant's motion for a new trial. Martin v. Angel City Baseball Ass'n, 3 Cal.App.2d 586, 40 P.2d 287.

The concluding and most serious attack upon the judgment is that the verdict was in an excessive amount. Our conclusion is that the award of $60,000 is so manifestly unreasonable as to compel the conclusion that it was given under the influence of passion and prejudice. Plaintiff, before he entered the Army Air Force, had graduated from high school and attended Jefferson College and Missouri University, studying to become a physical education instructor. He had worked as a recreation leader in the parks of St. Louis during summer vacations, instructing in ball playing and swimming. He had no established vocation. He was married and had become the father of a child a month preceding his accident. The fact that he was in the Army was sufficient evidence of his good physical health and condition. He hoped to remain in the Army if he succeeded in obtaining a sufficiently high rank. His pay as an air cadet was $75 per month, subsistence and clothing, plus a dependency allowance of $28 for his wife and an allowance for his child in an unstated amount, and $1 per meal when he was away from the base. He had been in the Army about 11 months, was in preflight training and had not progressed to primary training. After his injury he worked a few weeks for an engineering firm, where he was required to do drawing, and received $45 a week, but found that he was unable to do the work and later took a position of attendant at public tennis courts at $35 a week. He naturally suffered severe pain throughout extended hospitalization and treatment for his injuries and also embarrassment, humiliation, and anxiety over his condition and his prospects for the future.

Counsel for both parties have cited many cases on excessive damages from California and other jurisdictions. Among those cited by defendant are several in which smaller judgments for more serious injuries were reduced on appeal. Plaintiff has cited a number of cases in which larger judgments have been affirmed. We have derived little benefit from a study of the cases cited and others which we have considered. All cases in which injuries have resulted in amputation of the left hand cannot be classed together. There is no standard of general application by which damages for such an injury may be measured. Special damages usually enter into the computation. Plaintiff suffered no such loss, except through loss of wages until he was re-employed; his injuries were cared for at Government expense. He had no established vocation and his prospect of remaining in the Air Corps permanently was far too intangible to be used as a basis for computation of future earnings as an army officer. He was young enough to fit himself for an occupation in which he would be competent and reasonably efficient without the use of a natural left hand, although of course his choice of occupation would have been greatly restricted.

Permanent impairment of earning capacity in such case is by far the most important factor in assessing general damages. It is particularly difficult in plaintiff's case because of the absence of a definite factual basis, but we think there is no basis for saying that it appears with reasonable certainty that plaintiff will suffer a loss of earnings in the amount of $1,000 a year, or anything approximating that sum, for a period of between 50 and 60 years, or a proportionately greater amount over a lesser period. Considering the value of the use of the money the award in question would return much more than the suggested yearly amount. Fortunately, plaintiff's health has not been impaired. He has the choice of many occupations in which he would have substantial earning power and has not by any means lost the opportunity of working out for himself a successful business career. While fully conscious of our duty to give serious consideration to the decisions of the jurors and the trial judge with respect to the amount of the damages, we are satisfied that the award was unreasonable and we do not hesitate to characterize it as shocking to our sense of justice and one which was rendered under the influence of passion and prejudice.

We do not regard the case as one in which we should order a reduction of the damages. Under the facts which we have related, the assessment of damages is peculiarly a matter for decision by another jury (or by a judge). This issue, in our opinion, should be retried, and the judgment should be reversed solely for that purpose.

One of the grounds of defendant's motion for new trial was newly discovered evidence. It was shown by affidavit that on June 28, 1945, a court order was made that the Secretary of War direct that there be forwarded to the court plaintiff's complete military record and an affidavit he had made of the facts of his accident; that diligent efforts had been made by counsel to obtain the records for use at the trial but that they did not arrive until the evidence was closed and the case was being argued. It was defendant's claim that the medical records did not show any injury to plaintiff's head, that the affidavit would show plaintiff's statement that he fell when he stepped on a rock, and that other records would show that plaintiff concealed from the Army the fact that he had been convicted of a felony. We believe there was no abuse of discretion in the denial of the motion. Captain Adams and Lieutenant Murray of the Army Air Base testified as witnesses for defendant that plaintiff had stated and made affidavit that his fall was caused by stumbling on a rock or brick. In a counter affidavit of an attorney for plaintiff it was stated that the medical reports were only partial, and that they were negative as to whether plaintiff had a noticeable head injury, although they did show that plaintiff claimed to have been rendered unconscious by the fall. The fact that plaintiff concealed from the Army a previous conviction of a felony, which he admitted at the trial, would not, in our opinion, have been of material aid to defendant upon a retrial. Much of the evidence, claimed to have been newly discovered, was cumulative. The order denying the motion implies that the trial judge was of the opinion that the evidence furnished by the Army records would not have led to a different verdict. The ruling is subject to attack only upon the ground of manifest abuse of discretion, and no abuse of discretion has been shown.

The judgment is reversed for a retrial of the sole issue of damages.

I concur in the judgment. In my opinion remarks by the trial judge in the presence of the jury, to the effect that questions asked by defendant's counsel were not fair, might well have tended to influence the jury prejudicially against defendant in arriving at the amount of damages. When the attorney asked plaintiff how long it took him to travel from ‘near the front coach’ to where he fell, the judge said: ‘I don't think your question was quite fair in that respect, Mr. Brooks, assuming that he was at the front end of the first coach, and he has repeatedly stated that he was not sure. The question should have been objected to.’ The attorney then said: ‘I beg pardon, what I am trying to find out—.’ The judge said: ‘I know what you are trying to find out, but you made an assumption that tied the witness up tighter than he had been before. It is hardly fair.’ When the attorney asked plaintiff where he crossed from the station platform to the park, he said he did not know exactly, but he indicated a place which appeared to be where two coaches were coupled. The attorney asked him if he was referring to the couplers between the cars. The plaintiff said he could not pick it out that exactly. The attorney said: ‘Well, in that vicinity.’ The judge said: ‘Well, I cannot see any necessity of crowding the witness down to the last inch as to where a path begins. It is not reasonable.’ The attorney said: ‘I do not intend to do that.’ The judge said: ‘You are holding him down to a coupling between two cars, which is about the same thing.’ When the attorney asked plaintiff how far he was over the asphalt pavement from the brick platform when he fell the plaintiff said he did not know, but he would say about seven feet from the train. The attorney said: ‘If I were to tell you that the brick platform was nine feet wide would that be any assistance in approximating the distance you were west of the brick platform?’ The plaintiff said: ‘No, I mean, when I am walking * * * I cannot balance up seven or nine, I mean it is not that much difference to me.’ The attorney said: ‘Well, perhaps we don't understand each other.’ The judge then said that the plaintiff was only aproximating and that: ‘He did not measure, he did not have a tape line or ruler.’ The plaintiff said: ‘That is right.’ The judge said: ‘Nor did you step it off, is that correct?’ The plaintiff said: ‘No, sir.’ The attorney said: ‘My question is, if the witness knows how far off of the brick platform—.’ The judge said: ‘He has told you repeatedly all he knows he was about that far from the car.’

The attorney asked the plaintiff if he gave a statement to a representative of defendant as to his version of the accident, and the plaintiff replied that he had talked to some one shortly after the accident when an army officer was there also. The attorney asked him if he signed a statement giving his version of the accident, and he replied that he did not think so—that several weeks after the accident some one did ask him questions about it and that he gave answers. The attorney then said: ‘In any event, you did talk with someone in the presence of one of your officers, isn't that correct?’ The plaintiff replied that he did have an interview with some one. The attorney asked him: ‘Didn't you make this statement in the presence of representatives of the defendant, Mr. Anderson and Lieutenant Adams of the Military Justice Department: ‘That while waiting for the train to arrive you saw a man and woman talking together on the depot platform; that they went into the park on the east side of the tracks opposite the station, and being curious you went over to the park to see what was doing’ and you referred to yourself as a ‘Peeping Tom,’ do you recall having made that statement at that time and place?' The attorney for plaintiff objected to the question, and said: ‘If you have a statement hand it to the witness.’ The attorney for defendant said: ‘I will hand it to him.’ The judge said: ‘If it is in writing it must be shown to the witness.’ The attorney for plaintiff said: ‘He claims it is in writing. The only way they ever take statements is in writing so far as I know.’ The judge said: ‘That is not called for. We are trying this case as nearly to the law as we can, and as fairly as possible, and if you have a writing the law requires it to be exhibited to the witness.’ The attorney for defendant said: ‘I have a writing, but I did not say I have a writing covering that statement.’ The judge said: ‘If you have not, this becomes highly prejudicial.’ The attorney for plaintiff said: ‘I want at this time to make my objection, take exception to the prejudicial conduct of counsel. If he has a statement in writing—’. The judge said: ‘I have already made my statement. Just give counsel time, he may produce it. There is a reference made in your question to the witness, if he did not sign a statement —’. The attorney for defendant said: ‘That is true, your Honor.’ The judge said: ‘I think if that is what you are interrogating him about you should produce it. The law requires it, in all fairness.’ The attorney for defendant said: ‘I intend to produce it, but the question has reference to the foundation for impeachment. It was made in the presence of these gentlemen.’ The judge said: ‘I do not see the materiality of this matter, however.’

It does not appear that similar statements were made concerning counsel for plaintiff.

SHINN, Acting Presiding Justice.

KINCAID, J., pro tem., concurs.