As above indicated, plaintiff produced no other fact witnesses. He admitted his companions were seamen like himself and could be located through the public records, and furthermore conceded that he had made no attempt to contact them as witnesses.
The question of liability in the case turned on the credibility of the plaintiff as against the sworn testimony of Higginbotham, Curtis, Miss Coria, and the taxi drivers Garcia and Hippolito. The jury believed the defense witnesses and disbelieved the plaintiff.
Plaintiff objected strenuously to the admission in evidence of the depositions of Miss Coria, Hippolito and Garcia on the theory that the only identity by these witnesses of plaintiff and his associates was by name and that there were no confirmatory facts or circumstances. Plaintiff furthermore objected to the Court's affirmance of defendant's point for charge No. 6 as follows:
'If you believe the testimony of the two taxicab drivers and Miss Coria that Mr. Campbell and other seamen attacked Mr. Higginbotham earlier that night, you are justified in concluding that Mr. Higginbotham was in fear of further attack by these men when they met on the dock, and in that event he was entitled to take reasonable means for his own protection. In such case, the shipowner would not be liable for injuries sustained by Mr. Campbell if he fell over some object on the dock while running away from the Chief Mate after the men had resumed the fight.'
'It is thus clear that the basis of defendant's point for charge no. 6 was the testimony of Hippolito, (sic) Garcia and Miss Coria, and that the basis of their testimony was their identification by name of plaintiff and his shipmates.'
In this connection it is interesting to note that while plaintiff did file cross-interrogatories he did not cross-examine the witnesses on the matter of identification. He now seeks to impugn the identification because each witness did not specify the basis for naming Campbell, Johns and Houghton.
The witnesses testified freely at the police investigation which was held shortly after the incident and also gave statements to the investigator for the defendant. Hippolito's identification is confirmed by the fact that he found Campbell's seamen's papers in his cab after they left. This is mentioned in the statement which Hippolito gave the police the day after the incident and which is annexed to the answers to the interrogatories. Campbell admitted that he was in a taxicab that night and that he had lost his papers somewhere that day. He further admitted having been visiting around drinking places with Johns and Houghton, and having seen Higginbotham.
The testimony of all of the defense witnesses was clear, consistent, each with the other, and convincing. The close sequence of events, the taxi trips, the stop and the assault at the Coria home, the finding of the seaman's papers, the testimony at the police investigation and the statements to the defendant's investigator, all occurring in a very short time and doubtless in the presence of Campbell and his associates at the police hearing, clearly establish the identity on a much broader base than that by name only.
The jury was fully and, I am satisfied, adequately instructed on the matter of credibility and they did not believe the plaintiff's story. I feel that their conclusion was amply supported by the evidence.
Plaintiff's motion for new trial is denied.
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