The opinion
HAYS, Circuit Judge
(dissenting).
The question presented by this case is whether when a plaintiff testifies that he was injured in an accident and that X was a witness to the accident, the defendant can introduce testimony that he has talked to X and that X denies that he saw any accident.
Of course it is nonsense to require the production of witnesses to explain why they are not produced. But it is far from nonsense to require that when a party relies on the evidence of alleged eye witnesses to show that an accident did not occur, he should produce the witnesses and not be permitted to “explain” the failure to produce them by showing that, if called, they would deny having seen the accident. Foster v. Atlanta Rapid Transit Co., 119 Ga. 675 , 46 S.E. 840 (1904); Birmingham v. Kansas City Pub. Serv. Co., 361 Mo. 458 , 235 S.W.2d 322 (1950).
The crucial issue in this case was whether the plaintiff’s injuries were sustained at the time and place to which he testified.
Plaintiff was asked whether there was anybody near him at the time of the accident. He stated:
“The only one I saw was the fireman on the engine, on the yard engine.”
Under the guise of explaining the defendant’s failure to produce the fireman, the defendant’s claim agent was permitted, over plaintiff’s objection, to testify that he had interviewed all three firemen who were on duty at the time of the alleged accident and that none of them knew anything about the accident.
Obviously the effect of this evidence was to refute plaintiff’s testimony, while denying him the opportunity to cross-examine the fireman.
Nor was the unfairness to plaintiff confined to the hearsay evidence of the firemen. Although there was not the slightest suggestion in the evidence that anybody but the single fireman had witnessed the accident, the claim agent was permitted to testify that the three engineers working in the yards at the time also claimed not to know anything about the accident. Surely the defendant cannot argue that he would have been prejudiced by failure to explain not calling the hitherto unmentioned engineers.
I would reverse and give plaintiff a new trial.