REJECTION OF EVIDENCE WHICH WOULD NOT HAVE CHANGED THE RESULT.

Court of Appeals for Cuyahoga County.

#### The Cleveland Railway Co. v. Hoynes.

Decided, April 1, 1918.

*Error*— In *Rejecting Evidence*— Not *Ground for Reversal, When^-Refusal to Admit Statement Signed Toy the Injured' Man After the Accident.*

1. A judgment should not be reversed for the rejection of evidence on the ground that the same constitutes prejudicial error, unless there is some reason to think that its admission would have or might have resulted in a different verdict.

2. Where shortly after an accident the injured signed a statement containing details of the accident and at the trial gave testimony which contradicted in some particulars the written statement, the'action of the court in refusing to admit the statement in evidence, -while erroneous, did not constitute reversible error where the contents; of such written statement were incorporated piecemeal in questions propounded to plaintiff and other Witnesses, and were thus read before the jury. „ .

*Squire, Sanders & Dempsey*and W. *G. Boyle,*for plaintiff in error.

*Wm. M. Byrnes,*for defendant in error.

Heard on error.

*78Lieghlby, J.

The parties stood in reverse order in the court below and for convenience will be mentioned herein as they there stood.

Plaintiff, Frances H. Hoynes, filed her petition in the common pleas court praying for damages for injuries which she sustained while a passenger on a street car of the defendant company. The same proceeded to trial with the intervention of a jury and resulted in a verdict and judgment for plaintiff, from which judgment error is prosecuted to this court to reverse the same.

The error assigned and relied upon by the defendant to obtain a reversal of this judgment is the rejection of evidence offered by the defendant.

The plaintiff offered herself and a witness, Mrs. Smith, and others, to sustain her claims. Both plaintiff and Mrs. Smith testified orally at the trial below. It is claimed by the defendant that both made written statements a few days after the date of the injuries sustained by plaintiff. It is claimed that each statement contains contradictions of the testimony given by each at the trial. The alleged contradictions relate principally to the location and the size and kind of a seat upon which the plaintiff was seated, and from which she fell and injured herself by reason of the careless and negligent handling of said street ear by the -employees of the defendant company.

Mrs. Smith gave her testimony in chief, and on cross examination was confronted with a written statement claimed to have been prepared by one Williams, an investigator for the company, and signed by her a few days after the accident. She claimed not to remember having signed it. The contents of the paper writing were then incorporated piecemeal in questions by tlie cross examiner to the witness, and inquiry made of her whether she did not so state to the investigator. The contents of the paper writing were thus read in the presence of the jury. The paper had not yet been identified, but was offered and rejected. The- investigator, Williams, was called by the defense after the plaintiff had rested, who testified that-the paper writing corrctly recited the statements of this wit*79ness made to him at the time, and that it was signed by her in his presence. It was again offered and rejected. Again, the entire contents of this paper writing were recited in questions to this witness, and inquiry made whether Mrs. Smith had so stated to him at the time of his investigation, to.which questions the witness answered in all instances in the affirma-' tive. Thus the contents of this paper were again recited in the presence of the jury.

The plaintiff took the stand in her own behalf and. was examined in chief and cross examined by the defendant. On rebuttal she was recalled for further cross examination by the defendant, and inquiry made of her in reference to a certain written statement claimed by the defendant to have been made by her a few days after the accident. She was confronted with the written statement and asked whether she signed it, and her position was such that identification thereof became necessary •to make it competent in proof. The entire contents of the written paper were then incorporated in various questions by the cross examiner, and the plaintiff was asked whether she had made those statements to the investigator, some of which she answered in the affirmative and some in the negative. The contents of this paper were thus read before the jury and in its presence. In surrebuttal one Petrash, an investigator for the company, was called by the defendant, who testified that he prepared the written statement for the plaintiff and that the same contained a true recital of her statements to him and that she signed the same. This written statement of the plaintiff was offered and rejected by the trial court.

These written statements do contain some matters contradictory and inconsistent with statements made by the witnesses at the trial. As stated, the contradictions relate to the location of the seat- which the plaintiff occupied at the time of the accident, and its size and kind and direction with, reference to the length of the ear. Assuming that the statements were properly and sufficiently identified as claimed by the defendant, the same should have been admitted. ;• : •••-.•.■

Was their exclusion prejudicial error? .It is- claimed in the briefs that the contradictions relate only to the location Of the *80seat occupied by tbe plaintiff and her manner 'of occupying the same. The jury had before it the statements of these witnesses made in chief. It also had before it the contents of the written papers by incorporation in questions by the cross examiner, and wha,t the witness had to say about those written state ments. It tihereby had before it the alleged ctontradjictions and inconsistencies. It did not have before it, and as exhibits to be taken with it to the jury room, the written statements themselves.

In this respect the facts of this case present a very much different situation than is presented in a number of Ohio authorities bearing upon this subject. In these authorities the jury was not acquainted with the contents of the paper writings or the character of the proof excluded. *Shriedley*v. *State,*23 Ohio St., 130, and *Dilcher*v. *State,*39 Ohio St., 130.

We think the greater weight of the authority is to the effect that a judgment should not be reversed for the rejection of evidence ■ on the ground that the same constitutes prejudicial error, unless there is some reason to think that its admission would have or might have resulted in a different verdict. In view of the subject matter of the alleged contradictions and inconsistencies in the testimony of the plaintiff and Mrs. Smith given at the trial and their written statements made a few days after the accident, and in view of the further fact that the contents of these statements were before the jury one or more times by reason' of the manner of the cross examination, and that the jury had before it the conduct of these witnesses in respect to these statements and what they had to say about them, we are unable to conjure up any hypothesis upon' which it may be said the jury might have arrived at a different verdict if those written statements had been admitted and the jurors had had an opportunity to actually examine their contents. We do not think, that error has intervened in the trial of this case prejudicial to the rights of the defendant. Jones on Evidence, Section 896.

The judgment of the court below .is affirmed.

Grant and" Dúnlapp, Jj., concur. •