#### Jonas v. South Covington *&*Cincinnati Street Railway Company.

(Decided January 15, 1915.)

Appeal from Campbell Circuit Court.

1. Personal Injuries — Action for — When Question of Negligence one for the Jury. — Where, in an action to recover damages for personal injuries sustained by the plaintiff, there were but two witnesses testifying, the plaintiff’s testimony being to the effect that •upon his failing to grasp the handle bar of a street car, his injuries were caused by the act of the conductor in catching and holding him by the arm, thereby compelling him to run with the car and when released by the conductor to fall and break his leg; and the testimony of the remaining witness being to the effect that the *172conductor did not catch or hold plaintiff until after he had grasped the car and failed to let it go when commanded by the conductor to do so, and that plaintiff’s injuries were caused alone by his holding to and being dragged and *thrown,*by the car; the refusal of the trial court to submit to the decision of the jury the question whether plaintiff’s injuries were caused by the negligence of the conductor or by his own negligence, was error.

2. Trial — When Verdict Should Be Directed by the Court — When Question of Negligence Should be Submitted to the Jury. — It is the province of a jury to pass upon and decide questions of evidence if the evidence is contradictory or conflicting; but it sometimes becomes the duty of the trial court, even where there is evidence both for and against the party seeking a recovery, to enter a non-suit or direct the finding of the jury. This duty the law imposes on the court when the evidence as a whole fails to show a right of recovery in the party seeking it; but to authorize an instruction as in case of a non-suit, it should appear that, admitting his testimony to be true and every inference that is fairly deducible from it, the plaintiff has still failed to support his claim.

3. Depositions — When and Upon What Conditions They May Be Head by Adverse Party. — Where a deposition has been taken by one party and filed in the cause, his adversary is entitled to use it in evidence, although the party taking it refused to introduce it in his own behalf; but it would be error to permit the reading of a part of such deposition and to refuse to compel the reading of the whole of it, if the reading of the whole be demanded by the other party.

RAMSEY WASHINGTON and HOWARD M. BENTON for appellant.

L. J. CRAWFORD and D. J. CRAWFORD, JR., for appellee.

OPINION of the CouRT by

Judge Settle

Reversing.

This action was brought by the appellant, Frank Jonas, against the appellee, South Covington & Cincinnati Street Railway Company, to recover damages for personal injuries caused, as alleged, by the negligence of a conductor in charge of one of its' ears. At the close of the appellant’s evidence the court directed a verdict for appellee. This appeal is prosecuted from the judgment entered upon that verdict. Two grounds are urged for a reversal; (1) That the giving of the peremptory instruction directing a verdict for appellee was error; (2) that the refusal of the court to allow appellant to read part of a deposition to the jury, without reading the whole of it, was error.

*173The facts appear to be few and simple. Tbe appellant, who is sixty-five years of age, and a resident of Newport, this State, boarded one of appellee’s cars as a passenger in Cincinnati, for tbe purpose of returning to Newport. According to bis evidence, when tbe car upon wbicb be was a passenger crossed tbe bridge spanning tbe Ohio river between Cincinnati and Covington it stopped near tbe end of tbe bridge on tbe Kentucky side of the river to enable tbe motorman to go to appellee’s ticket office, only a few feet from tbe railway track, for a drink of water. When tbe car stopped appellant, who bad only a short distance further to go, alighted from it. What then followed can better be told in appellant’s own language, wbicb we here quote:

“Well, I got off of tbe car and bad an idea of walking; I thought tbe car might stop a considerable time, but I had walked no more than about — well, hardly as far as tbe width of this room, and I seen tbe car started again, and when I seen that, I put myself in position to catch bold of tbe handle bar, but, as it happened, I missed getting a bold of it. I didn’t have bold of the handle bar and wasn’t dragged by tbe car — that’s all a mistake ; but tbe conductor got bold of my left arm and held on to me, and so, if I wanted to or not, I bad to run after tbe car — tbe conductor made me. It wasn’t my intention, though; I never did intend to run after tbe car, and, well — after plodding along a little bit that way — I forgot now exactly bow far it was — maybe a couple of car lengths — then I was afraid my feet would get knocked so badly that they would be crippled up, and I holloed at tbe conductor to let me go, and, well — when be finally did let me go, I landed so bard that I fell and turned my left ankle. That’s all there is to it, gentlemen.”

By tbe fall be then received appellant’s leg was broken. Tbe only other evidence appearing in tbe record is that furnished by tbe deposition of G-eorge M. Jackson, who was a passenger on tbe car at tbe time- of tbe accident. He testified as follows:

“Tbe conductor was standing on tbe rear nlatform. Tbe car was moving, I should judge, about eight miles an hour. I couldn’t state exactly bow far tbe car went— tbe motorman stopped as quick as be could, about fifty feet. * * * Well, the car stopped at tbe end of tbe bridge, at the ticket office. Tbe motorman went off to get a drink or something. The passenger got off and *174started to walk, and as the car started again, the man grabbed the car and tried to get on while the car was in motion. The conductor holloed at him to let loose and tried to reach and catcb him. The old man fell on the side of the car and fell on the tracks. The car dragged him. The conductor rang for tbe motorman to stop and the car stopped about fifty feet and backed up and gathered him up and took him to Third and Monmouth streets, to Doctor Bonar.”

From the cross-examination of Jackson we quote the following questions and his answers thereto:

“Q. State exactly where you were on the ear; if seated, state what seat you were in? A. I was in the last seat in the rear, left hand side. Q. Did the conductor try to assist Prank Jonas (the man who was injured) on the car? A. Yes. He tried to grab him after he had holloed to him not to catch on the car. Q. Did the conductor catch hold of Jonas? If so, how did he •have hold of him? A. He did. He had hold of his arm.”

It will be observed that appellant and Jackson differ in one or two material particulars. The former testified that he did not take hold of the- handle bar of the car and was not dragged by the car, but that the conductor got hold of his left arm and held on to him, which compelled him to run along with the car. Jackson testified that appellant did take hold of the car and try to get on while it was in motion, and that the conductor holloed to him to let loose before he reached out and caught him by the arm. Both agree that when the conductor let appellant go he fell to the ground, in doing which he sustained the fracture of the leg. They also agree that after the conductor caught hold of appellant the car ran twice its length before being stopped, but Jackson alone testified that it was running at a speed of eight miles an hour, appellant making no statement as to its speed.

It is insisted for appellant that he was in nowise to blame for the injuries he sustained; but that they were caused by the act of the conductor in catching him by the arm and holding him until he was forced to run with the car and then turning him loose in such a way as to ¡cause him to fall; and that these acts of the conductor constituted negligence for which appellee is liable.

Considered as a whole, appellant’s own testimony conduced to prove that while it was his purpose to again ■ *175get upon, the ear as it passed him, he failed to grasp the handle bar and this failure ended his attempt to hoard the ear, which would have moved on, leaving him on the bridge or ground in safety, but for the act of the conductor in catching and holding him by the arm and" thereby dragging or compelling him to keep up with the car while in motion, until turned loose under such headway or momentum as to destroy his equilibrium and cause him to fall. On the other hand, according to Jackson’s testimony in'chief, appellant first put himself in danger by taking hold of the handle bar and attempting to get on the car while it was in motion, upon seeing which the conductor called to him to loose his hold on the car, and then attempted to prevent him from falling, by catching him by the arm, notwithstanding which attempt appellant did fall, when, in obedience to the conductor’s command, he released his hold on the car.

If appellant’s injuries were sustained in the manner testified by him, they were caused by the negligence of appellee’s conductor. Appellant, upon leaving the car, ceased to be a passenger, and his attempt to again board the car as it passed him did not make him a passenger. The car was not then at a point where it was required or accustomed to stop to take on passengers, hut had just left the ticket office, where passengers were allowed to get on and off. So, at the time of receiving his injuries appellant was a trespasser; therefore, the conductor was under no duty to render him assistance in getting on the car, but if he saw he was in danger, to use ordinary care to prevent his injuries.' It was, therefore, his duty to refrain from catching hold of appellant, if such assistance, under the circumstances, served to increase appellant’s danger; and, according to the latter’s version of the transaction, the conductor by taking hold of his arm and continuing to hold it, not only increased, but wholly caused, the danger which resulted in his injuries. In this view of the matter the act of the conductor in catching and holding appellant was: negligence. On the other hand, if, as Jackson’s testimony conduced to show, the conductor did not catch or hold appellant until after he had grasped the car and failed to let it go when commanded by the conductor to do so; that such holding of appellant’s arm by the conductor did not produce his injuries, but that they were alone caused by his holding to and being dragged by *176the car, it may well be said that they resulted from bis own negligence, or that such negligence so contributed thereto that but for same he would not have been injured.

In view of the plea of contributory negligence interposed by appellee's answer and the conflicting character of the evidence, the case should have been submitted to the decision of a jury, under instructions properly presenting the issues between the parties. What is and what is not negligence in a particular case is generally a question for the jury and not for the court. The rule is that where the facts are such that there is room for honest difference of opinion between reasonable men as to whether or not negligence should be inferred, the right to draw the inferences is for the jury. Therefore, whenever it is necessary to determine what a man of ordinary care and prudence would be likely to do in the emergency shown, involving, as it generally does, more or less of inference or conjecture, it should be settled by a jury. A satisfactory statement of the rule in question will be found in C., N. O. & T. P. Ry. Co. v. Rue, 142 Ky., 694:

“It is the province of a jury to pass upon and decide questions of evidence; and especially is this so if the evidence is contradictory or conflicting; but it sometimes becomes the duty of the trial court, even where there is evidence both for and against 1he party seeking a recovery, to enter a non-suit or d ect the finding of the jury. This duty the law imposes on the court when the evidence as a whole fails to show a right of recovery in the party seeking it; or, to explain our meaning in language employed by this court: ‘To authorize an instruction as in case of a non-suit, it should appear that, .admitting his testimony to be true, and every inference that is fairly deducible from it, the plaintiff has still •failed to support his claim.’ Shay v. R. *&*L. T. P. Co., 1 Bush, 108; Morris’ Admr. v. L. *& N.*R. Co., 22 R., 1593.”

It follows from what has been said that the circuit court erred in granting the peremptory instruction directing a verdict for the appellee.

Appellant’s second and final contention, that the court’s refusal to permit him to read a part of G-eorge M. Jackson’s deposition to the jury without reading the whole of it was error, is without merit. It appears that *177Jackson’s deposition was taken by appellee in Los An-geles, California, bis place of residence. On tbe trial and before tbe introduction of appellant’s evidence, ap-pellee’s counsel advised bis counsel and tbe court that it would not introduce or read Jackson’s deposition. After testifying bimself as a witness, appellant offered to read to tbe jury that part of Jackson’s deposition containing tbe questions asked bim on cross-examination and bis answers thereto, to which appellee objected, unless be would read tbe whole of the deposition. Tbe court sustained tbe objéction and ruled that appellant could not read tbe cross-examination without reading tbe whole of tbe deposition. Appellant excepted to this ruling, but read tbe whole of tbe deposition.

It appears to have been repeatedly held by this court, that when a party takes a deposition and files it, and declines to read it, tbe adverse party has tbe right to read tbe deposition. Musick v. Ray, 3 Met., 427; Weil v. Silverstone, 6 Bush, 698; Sullivan v. Norris, 8 Bush, 519. But we have been unable to find, nor have we been referred to, any case in which tbe court has passed on tbe question whether the party has tbe right to use a part of tbe deposition taken by bis adversary, without introducing it as a whole. In 13 Cyc., 983, it is said:

“Tbe question whether a party has a right to use only a part of tbe deposition or must introduce it as a whole is one upon which tbe courts have not been uniform in their decisions. In some cases tbe courts have allowed tbe deposition to be read in part, leaving tbe remainder to be read by tbe adverse party if be so desires; but tbe better rule seems to be that a part of a deposition cannot be read and part omitted, but tbe entire deposition competent and pertinent to tbe issues involved should be read; and especially is this so where a party introduces a deposition taken in bis own behalf. Where a party reads in evidence a part of a deposition taken at the in- • stance of bis adversary, be thereby makes it bis own testimony to tbe same extent as if be bad taken it, and bis adversary is entitled to read tbe whole.”

Tbe foot notes following tbe above statement of tbe law contain numerous cases in other jurisdictions bold-ing that it is error to permit tbe reading of a part of a deposition and to refuse to compel tbe party reading it to read tbe whole on demand of tbe adverse party. State v. Raburn, 31 Mo. App., 385; U. S. Trust Co. v. *178Lanahan, 58 N. J. Eq., *796;*Miles v. Stevens, 3 Pa. St., 21; Grant v. Pendery, 15 Kans., 236; Kilbourn v. Jennings, 40 Iowa, 473; Norris v. Brunswick, 73 Mo., 256; Hamilton-Brown Shoe Co. v. Milliken, 52 Neb., 116; Barton v. Morris, 15 N. Car., 240.

In view of tbe foregoing authorities, we tbink it safe to say that where a deposition bas been taken by one party and filed in tbe cause, bis adversary is -entitled to use it in evidence, altbougb tbe party taking it refuses to introduce it in bis own bebalf; but while this is so, it would be error to permit tbe reading of a. part of a deposition and to refuse to compel tbe party reading it to read tbe whole, if demanded by tbe adverse party. There was no error in tbe ruling of tbe trial court requiring appellant to read tbe whole of Jackson’s deposition.

For tbe reasons indicated tbe judgment is reversed and cause remanded for a new trial in conformity to the opinion. Whole court sitting.