#### Louisville Railway Company v. Kritzky.

(Decided February 10, 1915.)

Appeal from Jefferson Circuit Court (Common Pleas Branch, Third Division).

1. Evidence — Mercantile Books — When Incompetent. — In an action to recover damages of a street railway company for injuries received by the plaintiff in attempting to board one of its cars, the driver of an ice cream wagon, who testified as to the accident as a witness for the defendant, cannot be contradicted or his evidence impeached by the books of the ice cream manufactory for which he was driving, which were introduced for the purpose of showing that they contained no orders for ice cream requiring its delivery by the witness at or west of the place of the accident on the morning of its occurrence.

2. Evidence — Reasons for Exclusion of Such Evidence. — The introduction of the books in the manner and for the purpose indicated was inadmissible because: (1) They were not shown to have been properly kept; (2) Mercantile books can only be admitted as affirmative evidence and are never admissible to establish a negative proposition.

3. New Trial — Incompetent Evidence — Books.—The prejudicial effect resulting to the defendant from the introduction of the books in question being manifest, the refusal of the circuit court to grant it a new trial by reason thereof requires the reversal of the judgment.

FRANK P. STRAUS, HOWARD B. LEE and EUGENE R. ATTKIS-SON for appellant.

W. PRATT DALE and EDWARDS, OGDEN & PEAK for appellee.

*653OPINION OP THE COURT BY

JUDGE SETTLE

Eeversiug.

This is an appeal from a judgment entered upon a verdict returned in the Jefferson Circuit Court, Common Please Branch, Third Division, whereby the appellee, William N. Kritzky, was awarded $2,000.00 damages against the appellant, Louisville Bailway Company, for personal injuries received, as alleged, by the negligence of its motorman in operating one of its cars.

According to appellee’s own testimony, on the morning of the 26th of April, 1912, as he approached the corner of Nineteenth and Chestnut streets in the city of Louisville, on his way to work, he attempted to get upon one of appellant’s street cars as it passed him at that point; that after signalling the motorman on the car and it had slowed down, apparently for the purpose of taking on passengers, he took hold of the car to board it and had placed one foot on the lower step .thereof when it started with a sudden jerk and threw him into the street and to the ground, by which he was painfully and, to some extent at least, permanently injured.

According to the testimony of the motorman in charge of the car which appellee attempted to board, it was not at the time of the accident being operated for the transportation of passengers, but was being taken to a car barn for repairs; he not being in the company’s uniform at the time, but dressed in overalls; that as the car approached Nineteenth Street and the point at which ap-pellee was standing it was going at rate of ten or twelve miles an hour, and did not reduce its speed or slow down for the purpose of taking him on as a passenger; that he did not know that the appellee had attempted to board it or been thrown to the street until the car reached Eighteenth Street.

The only witnesses introduced in appellee’s behalf,, besides himself, were Thomas A. Brocar and Lee Pfeiffer, both of whom testified that they had been passed by the car and were within 150 or 200 feet of the appellee at. the time he was injured; that they saw him standing in the street at the proper place to board the car and also saw him attempt to get on it, in doing which he was thrown to the ground; but neither of them undertook to tell the rate of speed at which the car ivas then running or whether or not it slowed up in approaching appellee.

Appellant introduced in its behalf, in addition to the motorman, one John Stahle, Jr., who testified that he *654was driving a delivery wagon for the ice cream manu-factory of George Cuscaden at the time of the accident and was between Nineteenth and Twentieth streets on Chestnut going in the same direction as the car, and was about forty or fifty, feet behind it at the time appellee attempted to board it and was thrown to the ground; that the car did not slow up for appellee, but passed him going at a rate of ten or twelve miles an hour.

Appellee introduced in rebuttal, Harry Cuscaden, a son of the proprietor of the ice cream manufactory, who testified that the books of the ice cream manufactory showed all orders received for ice cream on the day of the accident; that they never had to deliver ice cream as early in the morning as the accident happened, 7:30 o’clock, west of Tenth and Broadway, unless there was some special order for it; that the books kept at the ice cream manufactory in the regular course of business showed all orders received for ice cream, and that they showed no order for the delivery of ice cream west of Tenth and Broadway on the morning of the accident. The witness produced and had with iiim the books referred to. In order that the testimony of this witness may be fully understood we quote the following questions and answers on his examination in chief:

“Q. In the month of April, 1912, were you in charge of the delivery department of the Cuscaden business? A. Yes sir. Q. Did you have in your employ, at that time, a young man by the name of John Stable, Junior? A. I could not say for sure, he has worked there a number of different times, but I can’t say for sure whether he was in the employ at that time, because my father does not keep any records of the names. Q. Well, on the mornings of the 26th and 27th of April, 1912,1 want you to tell the jury whether there were any orders to be delivered in the west end and at what hours?. A. Well, the only way I could tell you exactly, by going to the books. The court: Go to the books. Mr. Áttkisson: I object to any books unless he kept them. Q. Were those books kept under your supervision? A. No sir, they were not. The books are simply day journals and there are at least a half a dozen or eight people in the office and every one has a right to enter orders on the day journal. Q. Were all the orders made there in your office? A. Yes sir. The court: The books are kept in the regular course of business of your father? A. Yes sir. The court: I think you can refer to them. To which ruling of the court the de*655fendant by counsel excepts. Mr. Attkisson:. There is another reason here — books are never admissible to prove the negative of a proposition. The court: We will see what the books have to say this time. Q. On the 26th and 27th, I want to know, first, if there was any order at all to be delivered to Sixteenth and Chestnut, or on Chestnut between Sixteenth and Seventeenth Street? A. Not on the 27th there was not; no sir, nothing in the neighborhood of Sixteenth and Chestnut on either day. Q. Now, was there any order to be delivered that would carry one of your wagons in the neighborhood of Nineteenth and Chestnut? The court: West of Nineteenth. Q. Yes, west of Nineteenth Street, on either the 26th or 27th of April, by half past seven in the morning, April, 1912? A. No sir, not unless there would have been some special order and the books show there was no special order at that early hour. The wagon never has anything below Tenth and Broadway depot, early morning train orders, at that hour in the morning. Q. If there had been any special order to carry a wagon west of Nineteenth Street, on Chestnut, would your books show it? A Yes sir. Q. Do they show it? A. No sir. Q. Then, there was none? A. No sir.”

Although additional grounds for a new trial were filed in the court below by appellant, it asks the reversal of the judgment appealed from upon the single ground that the books of the Cuscaden ice cream manufactory, together With the accompanying testimony of Harry Cuscaden, introduced in rebuttal by appellee on the trial, for the purpose of contradicting appellant’s witness, John Stable, Jr., were incompetent and so prejudicial to its substantial rights, as to entitle it to the new trial moved for in the circuit court.

This contention must prevail. In the first place, it is manifest, both from the books and Harry Cuscaden’s testimony, that they were simply day journals and inaccurately kept, because the entries, particularly those of the day on which appellee was injured, were made by six or eight different persons employed in the office of the Cuscaden ice cream manufactory, the handwriting of none of whom was identified, nor was it made to appear that the entries of ice cream orders were made as of the time or days they were received, or that those who made them had personal knowledge of the facts entered or recorded. At most the books were simply memorandum books kept in a haphazard manner, and the entries *656had no relation to dealings between litigants, neither party to this action having any connection with the matters therein recorded. For the reasons mentioned, if no other were apparent, the books in question were incompetent as evidence. C., N. O. & T. P. R. Co. v. Smith & Johnson, 155 Ky., 490.

In the second place, mercantile books may be admitted as affirmative evidence but they are not admissible to establish a negative proposition. In Lawhorn v. Carter, etc., 11 Bush, 7, the question of evidence under consideration was passed on. In the opinion it is said:

‘ ‘ The plaintiff when testifying in his own behalf was allowed to state that the books of the firm had been kept by his deceased partner and the clerks of the firm, all of whom were dead, and that they were correctly kept and had been found by the witness in settling the firm business to be correct, and then to state that they contained no entry showing that the defendant had delivered tobacco to the firm, as claimed by him; and so much of the books as related to the defendant’s account with the firm was allowed to be read to the jury as evidence, and the account as read is copied into the record. The account on its face shows that it does not contain the original entries of the items appearing on it, and the books were for that reason incompetent. (1 G-reenleaf on Evidence, Secs. 117, 118.) But they were inadmissible on other grounds. Mercantile books can only be admitted as affirmative evidence, and are never admissible to establish a negative proposition. It was accordingly held in an action by a laborer against his employer for wages that the time book of the employer, kept in tabular form, in which the days the plaintiff worked were set down, was not admissible in evidence to show that the plaintiff did not work on certain days, by the omission of the defendant to- give credit for those days; and the reason given was that it was a book of credit, and not of charges. (Moore v. Potter, 4 Gray, 292.) The books, as well as the testimony of the appellee in reference to them and what they contained or did not contain, were incompetent. ’ ’

A yet more recent authority in point is furnished by the case of Vandyke v. M. N. O. & C. Packet Co., 24 R. 1283. The action was instituted by a roustabout to recover damages of the owner of a steamboat for negligence • in permitting a trap door to remain open, through which the plaintiff fell and sustained serious injury. Charles McKenzie, a witness for the plaintiff, testified that he was *657a roustabout on tbe boat at tbe time of tbe accident and tbat tbe plaintiff’s injuries bad been sustained in the manner claimed by him. Tbe defendant was permitted to' introduce in evidence a record kept by tbe shipping clerk to prove tbat McKenzie’s name was not among tbe list of' roustabouts on tbe boat at tbe time of tbe accident. In bolding this evidence incompetent tbe court said:

“The defendant then introduced tbe captain of tbe boat, and asked him if McKenzie was on tbe boat on tbat trip. He answered tbat be hardly thought be was. Tbe defendant then introduced tbe record of tbe boat kept by tbe shipping clerk, who was not introduced as a witness, and showed by it tbat McKenzie’s name did not appear in tbe list of roustabouts kept by him on tbat trip. Tbe clerk who was introduced was not present when the second clerk took tbe names, but testified tbat tbe latter tried to get them all. He also stated tbat sometimes these roustabouts took different names. This proof failed to show tbat tbe record was correctly kept, and it should not have been admitted. On tbe contrary, it tended strongly to show tbat though tbe second clerk tried to get all tbe names, be might not have done so. There is another objection to this evidence. Books of this kind are usually admitted only as affirmative evidence, and not to establish a negative proposition. Thus it has been held tbat tbe time book of tbe employer kept in tabular form, in which tbe days tbe bands worked were set down, was not admissible in evidence to show tbat tbe plaintiff did not work on certain days. (Lawhorn v. Carter, 74 Ky., 7; Moore v. Potter, 4 Gray, 292; Mattocks v. Lyman, 46 Am. Dec., 138.)”

An examination of tbe authorities relied on by ap-pellee will show tbat they do not conflict with tbe principle announced by tbe authorities *supra.*They relate to controversies or transactions between litigants and have no bearing on a state of case like tbat here presented.

There can be no doubt of tbe prejudicial effect of tbe evidence furnished by tbe books referred to and tbe statements of Harry Cuscaden. Tbe purpose of it all was to show tbat appellant’s witness, Stable, who alone corroborated its motorman as to tbe manner of appellee’s receiving bis injuries, did not see tbe accident and was not in the vicinity when it occurred, and its effect upon tbe jury was necessarily very damaging to appellant. *658So forcibly was it used by appellee’s counsel in bis argument to tbe jury, that upon tbe conclusion of tbe argument counsel for appellant moved to discharge tbe jury, filing in support of the motion tbe affidavit of T. J. Check, one of its employes, setting forth tbe denunciatory language used by appellee’s counsel in referring to tbe witness Stable, and the use made by him of tbe books of tbe ice cream company in attacking Stable’s credibility.

We think it patent that tbe introduction of tbe incompetent evidence in question prevented appellant from obtaining an impartial trial of bis case; and because of tbe error of tbe circuit court in admitting this evidence and its further error in refusing appellant a new trial by reason thereof, tbe judgment is reversed and cause remanded with directions to that court to grant it a new trial in conformity to tbe opinion.