*

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anything but the train blew and it blew almost continually all the way down there." "There is no doubt in the world about it because I am absolutely positive it did blow and continued to blow." "I got up in the cupola when the train passed me and looked to see what was the trouble. I thought they were going * from the way they were

*

to have some trouble
blowing." "It was blowing in an unusual way.

mon.

*

It was blowing to an unusual extent, more than com* I think it was the 24th of December." He was then asked on cross-examination, "Did it sound like that blowing had Christmas in its bones?" He answered: "It sounded like it had about a gallon in its bones."

The defendant did not object to this evidence, and cannot now be heard to complain of it. In the argument of the case before the jury, plaintiff's counsel referred to the conduct of the engineer as testified to by Dr. Tunstall, and characterized the same as "hilarious," and the defendant excepted.

Webster's Dictionary defines the word "hilarious," as follows: "Mirthful; noisy; merry;" and defines "hilarity," boisterous mirth, merriment.'

The plaintiff's counsel had the right to discuss the evidence given by defendant's witness without objection, and in view of the conduct of the engineer, as described by Dr. Tunstall, it could certainly be said that his conduct was noisy or merry, or even hilarious. There is nothing in the record to indicate that the jury was in any way influenced by the term hilarious, as applied to the conduct of the engineer. Their verdict was for $5,000 when it might have been for $10,000. We find no reversible error in this assignment.

The ninth assignment challenges the action of the court in refusing to permit the defendant's counsel to

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introduce and read to the jury the evidence of Crawford Gordon, Sr., which was introduced orally and transcribed at the second trial of the case, and in refusing to permit defendant's counsel to introduce the testimony of the defendant's witness, S. B. Whitehead.

[5] Crawford Gordon, Sr., was examined as a witness for the plaintiff at the first and second trials of the case, and at each trial he testified as an individual and not in his representative capacity. At the third and last trial he was absent on account of sickness, being at his home in Cleveland, Ohio, and unable to make the trip to Virginia. Several days before the trial counsel for the plaintiff, anticipating that Mr. Gordon might not be able to attend court, obtained from defendant's counsel his consent to use the stenographic report of Gordon's evidence given at the second trial, if they should desire so to do. There was no agreement that it should be used, and there was no intimation from defendant's counsel that the defendant desired to use the stenographic report as evidence for the defendant, if the plaintiff did not use it. On the contrary, plaintiff's counsel told defendant's counsel that they themselves might decide not to use it. The only agreement exacted of the defendant's counsel by the plaintiff's counsel was that if the stenographic report should be used, the whole of it would be read. At the trial plaintiff's counsel did not introduce this evidence for the plaintiff. Thereupon defendant's counsel moved the court to permit the defendant to introduce said evidence in his behalf, and to permit the defendant to introduce the witness S. B. Whitehead and allow him to testify to what Gordon stated upon the witness stand at the last trial, which motion the court overruled.

[6] Under the admitted facts in the instant case, defendant's counsel had no right to prove either from the

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transcript of Gordon's evidence or by the testimony of the witness, Whitehead, what Gordon had testified to at the last trial, except with the consent of the plaintiff. It is true that in civil actions, under certain circumstances, a party may be permitted to prove what a witness stated at a previous trial between the same parties and upon the same issues.

[7] In 16 Cyc, p. 1088, the rule is stated thus: "The court must be satisfied (1) that the party against whom the evidence is offered, or his privy, was a party on the former trial; (2) that the issue is substantially the same in the two cases; (3) that the witness who proposes to testify to the former evidence is able to state it with satisfactory correctness; and (4) that a sufficient reason is shown why the original witness is not produced. The first three of these conditions render the reported evidence relevant; the fourth is necessary to justify the court in receiving it."

[8] In the same work, at pp. 1095-6, after declaring that such testimony is substitutionary, it is said: "The court will, therefore, insist upon being satisfied, not only that the situation of the case promises some advantage from its use, but also that a sufficient reason be shown why the original witness is not produced; and that it is impossible, fairly speaking, for the person offering the evidence to produce the living witness or take his deposition." And on page 1098 the same author makes the following statement: "The more modern tendency is not only to require that the absence offered as a basis for admitting the former evidence should be permanent, but to require further that the party offering the evidence should show to the satisfaction of the court that he could not by the use of reasonable diligence have procured the deposition of the absent witness. Mere absence from the jurisdiction at the time of trial is a disa

Opinion.

bility by no means equivalent to death, without affirmative evidence that a fruitless search has been conducted in good faith and with due diligence, and that, from ignorance of the witness' whereabouts or other reason, his deposition could not have been taken."

[9] The uncontradicted evidence is that Crawford Gordon, Sr., was sick at Cleveland, Ohio, but not in bed, and was well enough to give his deposition. The defendant's counsel never intimated that he wished to use Gordon's testimony taken on the former trial or that he wished time to take his deposition. The Virginia statute, Code sections 6226 and 6231, provides how depositions of witnesses residing out of the State may be taken and read as evidence in a civil case at law. Under such circumstances, the ruling of the court in refusing to allow the defendant to introduce the written evidence of Gordon, or to prove his statements as a witness at the last trial by the witness, Whitehead, was plainly right.

It is also contended by the defendant that he should have been allowed to introduce the testimony of the witness, Whitehead, on the ground that it would show an admission on the part of the plaintiff that there was no liability on the part of the defendant, because if the facts were as related by the plaintiff when testifying as a witness there could be no recovery.

This position is not well taken. Gordon is plaintiff in a representative capacity only, and he testified in an individual capacity.

[10] In Wigmore on Evidence, Vol. 2, sec. 1076 (2), p. 1275, speaking on the subject of admissions by parties to a suit, it is said: "Where the party sues in a representative capacity-i. e., as trustee, executor, administrator, or the like the representative is distinct from the ordinary capacity, and only admissions made in the former quality are receivable. * * * Conversely,

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his admissions as executor or the like would not be receivable against him as a party in his personal capacity. A guardian, so far as his powers place him in a representative capacity, is subject to the same rules."

[11, 12] The first assignment of error was to the action of the court in refusing to give four instructions offered by the defendant, and the second assignment to the action of the court in giving five instructions offered by the plaintiff. The plaintiff in error fails to point out any specific error in any of the instructions given on motion of the plaintiff, except instruction "D," and it is admitted that "D" is an exact copy of instruction No. 5, which was passed upon by this court on the first appeal in this case. 128 Va. 426, 104 S. E. 796. In discussing this instruction at pages 434-435 of 128 Va., at page 798 of 104 S. E. this court said: "This instruction does direct the attention of the jury to the evidence introduced by the plaintiff tending to prove that no warning signals of the approach of the train were given, and properly presents the issue which they should have been called upon to determine. This instruction, or its equivalent, 'should have been given, and it was error to refuse it without giving some other instruction which embodied the last clear chance doctrine as applicable to Mrs. Gordon and the specific evidence in the case."

As to this instruction, the defendant, practically speaking, is asking this court to reverse its ruling made on the same question on the first appeal in this case. This will not be done. The decision of this court on the former appeal was binding on the trial court, and right or wrong will be decisive in this court on the second appeal.

[13] In Steinman v. Clinchfield Coal Corp., 121 Va. 611, at p. 621, 93 S. E. 684, at p. 687, this court said: "The doctrine briefly stated is this: Where there have been two appeals in the same case, between the same