Page images

The distance from the westerly boundary of time of the trial without the jurisdiction of the asphalt to the point where the street ob- the court, and was not available as a wittains its full width is 38' 4". The accident ness. The record of Dr. Peet covered the occurred near the boundary between the case from June 14 to August 15, 1912. It granite blocks and the asphalt pavement. appears to have been his business, as the The defendant's truck was about 6' wide, recording official, to place upon record such and probably somewhat wider in the upper facts relating to the patient as were combody. The two-horse wagon which was first municated to him by his associates and subahead and later north of the defendant's ordinates, as well as those which came under truck was 12' long and about 6' wide. his personal observation. It also appeareil

There is a conflict of testimony as to the that the record in question was written up movements of the plaintiff in approaching by Dr. Peet every third day. These facts, the place of the accident. The plaintiff explanatory of the record, having all appearclaims that he was proceeding along Point ed in testimony, and it having also appeared street on his way to the bridge on his own that Dr. Peet was without the state, and right side of that street, and that both be- that the record was in his handwriting, it fore and after the defendant's truck was was offered in evidence by the defendant. turning out for the purpose of passing the The court excluded the record and noted the team ahead of it his approach could have defendant's exception, stating that it had been easily observed by Lodge, who was op- been excluded with the understanding that erating the truck. The defendant claims it was objected to, whereupon counsel for that the plaintiff was not upon his right side the plaintiff observed: of the street, as he claims, but that, so far "I don't understand that it is legal evidence, as Lodge could observe, the street presented a that it is hearsay, and we have no opportunity clear passage for his truck upon the left of to cross-examine the people who made up that the team in front of him; that the plaintiff

So far as appears, both sides proceeded upmust have been traveling on his left-hand side of Point street, and his approach, there the plaintiff had regularly objected to the in

on the assumption and understanding that fore, obscured by the team ahead, and that the troduction of the record, and we, therefore, plaintiff, evidently intending to bear to his

may consider it in the same way. left, in passing the team and truck, suddenly

The purpose for which this record was offound that a passage upon that side was im- fered in evidence was to show the unruly practicable, and so quickly turned to the behavior of the plaintiff and his disobedience other side, passing close to the heads of of the positive orders of the surgeons and the horses of the team ahead of the truck, nurses as to keeping quiet and refraining and unexpectedly appearing in front of the from movements which would be likely to truck too late for Lodge, the driver, to avoid seriously interfere with the proper adjusta collision. The truck did not run over the ment and knitting together of the fractured plaintiff, but the left front mud guard came bone. It also appears in evidence that some. in contact with his left leg, and he sustain- if not all, of those who reported the plained a fracture of the left thigh.

tiff's condition and actions from time to We shall not undertake to deal with the time were called as witnesses at the trial, questions of fact which were presented to and that therefore, as the plaintiff claims, and were particularly within the province the exclusion of the record did not in effect of the jury, but the foregoing brief state- deprive the defendant of any useful or imment will serve to assist the understanding portant testimony. We do not think that the in the discussion of the questions of law. plaintiff's claim in this regard is well foundThe defendant claims that the court erreded. The exclusion of the record deprived the

. in excluding the record of the Rhode Island defendant of its force as corroborative of Hospital. It appears from the evidence the testimony of the other witnesses, the that it is a rule of the Rhode Island Hos-record having been made long prior to the pital that a record shall be kept showing, suit and without any reference to the plainamong other things, the condition of the tiff's claim. patient when received, his treatment while

The general rule that hearsay is not comthere, his condition from time to time, de- petent testimony is well understood. To this noting his progress toward recovery or other general rule, however, there are various exwise, as the case may be, and of such other ceptions. It is not necessary that there matters as may have a bearing upon or fur- should be any express statute or regulation nish needed information. Such a record re-creating the authority or duty to make such lating to the plaintiff was kept by Dr. Peet, a record. If the duty of making it devolveil who was an interne or assistant surgeon at upon Dr. Peet, under the rules and regulathe hospital. This record embraces some tions of the Rhode Island Hospital, that matters which came under

under the personal would be sufficient in that regard, and the knowledge of Dr. Peet while other matters of source from which that duty originated vrouli record were communicated to him through not be material. Such duties may arise from doctors and nurses connected with the case. the casual direction of a superior, or from Dr. Peet, who made the record, was at the functions necessarily inherent to the position which the recorder occupies. 3 Wigmore on, of societies and associations, including church Evidence, & 1633; Kyburg v. Perkins, 6 Cal. records of baptism and marriage, are not kept 676; Evanston v. Gunn, 99 U. S. 660, 25 L. through any requirement of law or ordinance. Ed. 306.

It is sufficient if such record be kept by We do not understand that the paintiff some person in the regular course of his occontroverts the general rule of law as con- cupation or business, that is, in the course of tained and stated by the court in its opinion transactions performed in one's habitual rein State v. Mace, 6 R. I. 85, which is as fol- lations with others and as a natural part of lows:

one's mode of obtaining a livelihood, includ"The general principle, as established by the ing any regular record that would be helpleading English and American cases, is that en- ful, though not essential or usual in the same tries made in the regular and usual course of occupation as followed by others. It is only business are admissible in evidence after the death of the person who made them, on proof of necessary that the keeping of such record his handwriting. In some of the states of this should be a natural concomitant of the transcountry absence from the state, as far as it af- action to which it relates. 2 Wigmore on fects the admissibility of secondary evidence, Evidence, g 1523; Fisher v. Mayor, 67 N. Y. has the same effect as the death of the witness. 77; Kennedy v. Doyle, 10 Allen (Mass.) 161. In Massachusetts insanity has been held equivalent to death. In New York and Alabama the [2] The claim of the plaintiff that there is strict rule is adhered to that the person who nothing to show that it was the duty of any made the entry must be dead to render. the en- one to keep such a record is erroneous. The try admissible. The principle as established by the American decisions, on which an entry is uncontradicted testimony of Dr. R. G. Mcadmitted as evidence, seems to be that the Alilay is that it was the duty of Dr. Peet to acts of men performed in the usual course of make such record from June 14th to August business and committed to writing, being under 15th, that being a part of the period during obligation to do the act, and where there is no which the defendant claims that the unruly inducement to misstate facts, may be relied on as evidence of things done as they occur. On and disobedient conduct of the plaintiff was this principle entries made in the regular and responsible for his incomplete recovery from usual course of business are admitted as proof, the fractured bone, and, further, that such although the person who made them may recollect nothing of the facts, upon his testifying to records were in the handwriting of Dr. Peet. the authenticity of the entry. It would seem,


, [3, 4] In making a record of this character therefore, if this evidence may be admitted when which shall be admissible in evidence it is the person who made the entry is present to verify the book, the entry being all that connecessary that the entries therein be made stitutes the evidence, if he be dead or absent contemporaneously with the facts to which secondary proof that it was kept by him is such entries relate. Chaffee & Co. v. U. S., 18 admissible, on the same ground that, a sub-Wall. 516, 21 L. Ed. 908. The plaintiff claims scribing witness to an instrument being absent, his handwriting may be proved, or a copy of that the entries made by Dr. Peet were not an instrument, when the original' is lost, may be contemporaneous, and that his failure in that offered in proof. All that is necessary to ren- regard would be sufficient to exclude the recder the entry admissible as evidence, if the wit

ord. ness is living, is that he shall testify that the

The testimony is that the record was entry was made in the regular course of busi-made up every three days, and that that ness in his handwriting; and if he be absent or method was the one employed at the hospidead, other witnesses may be competent to tes-tal. The term "contemporaneous” is not contify to that."

strued to mean that a record must be made The objections of the plaintiff to the ad- at the moment of the occurrence, but within mission of the hospital record, as set forth in such time thereafter as would reasonably his brief, are: (1) That there is nothing in make it a part of the transaction. Jones on the case to show that such record is required Evidence (2d Ed.) § 319; Ingraham v. Bockiby law or ordinance; (2) that there is noth-us, 9 Serg. & R. (Pa.) 285, 11 Am. Dec. 730; ing to show that it was the duty of any par-Jones v. Long, 3 Watts (Pa.) 326; Barker v. ticular person to keep such record; (3) that Haskell, 9 Cush. (Mass.) 221. it was not a public record, but something We think that, taking into consideration that was kept simply for the convenience the regular method in which these records and assistance of attending doctors and nurs- were made and the apparent impracticabilies; (4) that the recording was not contempo- ty, in a hospital, of recording each event as raneous with the happening of the events re- it occurred, the facts relating to the plaincorded; (5) that some of the events record-tiff were recorded within such reasonable ed were not within the personal knowledge time as would make them a part of the of the person recording them; and (6) that transaction, and therefore contemporaneous facts reported by others to Dr. Peet and by within the meaning of that term. They him recorded were capable of proof by those were entries made in the regular course who reported them, and who were, or might of business at the hospital and at the times have been, called as witnesses on behalf of and in the manner there in vogue. They the defendant.

were made by a person, now without the ju[1] The admissibility of a record does not risdiction, who had at the time no interest depend upon its requirement by law. In to misrepresent facts. In Jones v. Long, sufact, a great variety of records unquestion- pra, the court said: ably admissible in evidence, as, for instance, “The entry need not be made exactly at the the books of mercantile houses, the records | time of the occurrence; it suffices if it be with

[ocr errors]

in a reasonable time, so that it may appear to fore stated, it deprives the defendant of the have taken place while the memory of the fact corroborative effect of the record upon the was recent, or the source from which knowl, testimony of the witnesses in the event that edge of it was derived, unimpaired. The law fixes no precise instant when the entry should they were called and testified. The written be made.

record should not be excluded upon the [5] The plaintiff further claims the record ground that the witnesses who made reports to be inadmissible because some of the facts to Dr. Peet had also testified at the trial of therein recorded by Dr. Peet were not within the case. They are two distinct sources of

. his personal knowledge, and that, it being testimony each having a value independent impossible to separate the facts therein due to of the other. 2 Wigmore on Evidence, 8 such personal knowledge from those received 1544; Peck v. Abbe, 11 Conn. 210.

· by reports from others, the record as a whole

[7] Our conclusion is, after full and caremust be excluded. We cannot agree with ful consideration of the plaintiff's several this contention of the plaintiff. The law up-points of objection, that the hospital record on this subject is ably discussed in 2 Wig- should have been admitted. more on Evidence, $ 1530, reaching the con

[8] The defendant contends that the trial clusion that:

judge erred in charging the jury in reference “Where an entry is made by one person in to the plaintiff's misconduct while in the hosthe regular course of business, recording an oral pital. There was testimony on the part of

, or written report, made to him by one or more the doctors, surgeons, and nurses that the other persons in the regular course of business, plaintiff, during the time he remained at the of a transaction lying in the personal knowledge of the latter, there is no objection to receiving hospital, was unusually restless, that he was that entry.”

sometimes ugly and disobedient and interferAnd further on (section 1555) the authored with the apparatus placed upon his leg says:

and body for the purpose of restraining his "Where, then, the party has made the record, movements during the period when the ends

, but has not personal knowledge of the delivery of the fractured bone would be expected to of the goods or the rendering of the services knit together, and that these several acts on charged, he may call the person having know!- the part of the plaintiff were contrary to the edge and use the latter's supplemental testimony. If the salesman or teamster is deceased. express instructions and orders of the ator otherwise unavailable,

this need tending surgeons and nurses. The surgeons not prevent the use of the entry book."

testified that the plaintiff's recovery was not In Anchor Milling Co. v. Walsh, 108 Mo. as satisfactory as would reasonably have 284, 18 S. W. 904, 32 Am. St. Rep. 600, plain-been anticipated, and that the shortening of tiff's manager kept a shipping book in which the leg was probably due to the plaintiff's most of the entries or deliveries were made disobedient and unruly conduct in unfastenon the knowledge of a shipping clerk; the ing straps and in the movements of his body clerk had left the plaintiff's employment and in various ways. was not called. The book was admitted in The defendant 'requested the court to evidence. In Morris v. Briggs, 3 Cush. charge the jury upon this point as follows: (Mass.) 343, workmen made memoranda from "If defendant is liable in this case it is only which the plaintiff made entries in his books. for the natural consequences resulting from the It was held that the testimony of the worked the orders of the physicians or nurses in the

collision. If the plaintiff unreasonably disobeymen was not necessary. In Fireman's Ins. hospital with regard to keeping quiet, and this Co. v. Seaboard Air Line Ry., 138 N. C. 42, failure produced

failure produced more serious injury than 50 S. E. 452, 107 Am. St. Rep. 517, the court would otherwise have resulted from the acci

dent, the defendant is not responsible to the held that where, in an action against a rail- plaintiff for this aggravation of his injuries." road for burning cotton, it became material

This request was refused, the court chargto show at what time defendant's wrecking train reached a certain station on the day in ing the jury as follows: question, the dispatcher's train sheet for to my mind one of the most important things

"Now the first thing in that connection, and that day, kept in the usual course of busi- for you to decide is, is it established as an ness, on which the dispatcher testified that affirmative fact that the plaintiff's acts have he marked the time of the arrival and de- caused an aggravation of the injury? I inparture of the train as telegraphed to him by as an affirmative fact that the plaintiff by his

struct you that unless you find on the evidence the operator at the station, was not objec- acts has caused such aggravation of the injury, tionable as hearsay. See, also, Louisville & then you are to dismiss this claim from your N. R. Co. v. Daniel, 122 Ky. 256, 91 S. W. consideration. It is not enough to decide that 691, 3 L. R. A. (N. S.) 1190, to the same ef- tion, that would be pretty nearly the same as

the plaintiff may have aggravated his condi

; fect.

saying that the plaintiff's acts may not have [6] The final objection of the defendant to l'aggravated his condition. It has got to be the admission of the hospital record is that more than that;, you have got to find as an

affirmative fact before you make this allowthe facts reported to Dr. Peet and by him re- ance that he did aggravate his condition by his corded were capable of proof by those mak- own act. The subject is one that I have not ing such reports, and that they were or found easy to find definite authority on to might have been called to testify at the trial satisfy my own mind in the time allowed dur

ing this trial, but I am going to give my conon behalf of the defendant. We do not think

struction of the law on it. I will put it in that this is a well-founded objection. As be- | three paragraphs, so that if you wish to ex


cept to the reading of any, just note your ex-j instructions in this respect amounted to erception.

ror. "First. The plaintiff's acts, to have the effect of striking from your consideration any conse

[9] The defendant further claims that the quences of the injury, must have been voluntari- trial court erred in charging, in substance, ly and knowingly performed and performed with that if the defendant was, at the time of the the knowledge or means of knowledge that such accident, traveling on the left of the road, acts would necessarily or probably do him ma

, terial harm.

he assumed the risk of so doing and was "Second. If the plaintiff did voluntarily and required to use greater care than if he had knowingly, and with the knowledge that such been traveling on the right side. The portion acts would necessarily or probably do him material harm, commit acts which materially ag

of the judge's charge to which the defendgravated the effects of his injury, he canriot re- ant's exception refers is as follows: cover for the aggravation to his injuries so "The case that I want to cite from is Angell caused by his own act; but this does not affect v. Lewis, and there the plaintiff's wife was drivdefendant's liability for damages caused by its ing a buggy between Fruit Hill and Centerwrongful act and for the necessary and proxi- dale. The findings of the court and jury showmate consequences of that act of the defended that she kept to her right, did not get beant.

yond the middle; that two wagons came to “Third. If the plaintiff's injury was aggra- meet her, came towards her; the first one convated by restlessness or acts done by him which tinued to keep to its right and went by safe- ' were merely the necessary or proximate conse- ly. The defendant was in the second, and as quences of the original injury, you will not, be- he came near the plaintiff's buggy he swung to cause of such aggravation, lessen the damages the left to pass the wagon in front of him, and required to compensate for the injury done him, in so doing smashed into the plaintiff's buggy, but will consider the results of such aggrava- and it was found and declared that Mrs. Angell, tion as a part of the results of the original in- who was driving, could not reasonably do anyjury. If it is involuntary, if it is due to rest thing to prevent the accident. On that state of lessness, or any other act beyond the control affairs the court used expressions that would of the plaintiff, or done without consciousness be applicable to this case if this case hapthat it must or probably would hurt him, then pened on the supposition that I have named. it is to be disregarded.”

And the case, I think, is pertinent in other reThe court first says:

spects. The evidence shows that the plaintiff's

wife complied with this requirement on meet"Now the first thing in that connection, and ing the two teams, and that she was in the act to my mind one of the most important things of passing them safely when the defendant sudfor you to decide, is, is it established as an af- denly pulled his team to the left and collided firmative fact that the plaintiff's acts have with hers. In thus taking the wrong side of the caused an aggravation of the injury? I in- road the defendant took the risk of the construct you that unless you find on the evidence sequences which might arise from his inability as an affirmative fact that the plaintiff by his to get out of the way of another team approach acts has caused such aggravation of the injury, ing on the right side of the road, and is responthen you are to dismiss this claim from your sible for injuries sustained by the latter while consideration."

exercising ordinary care. In other words, one And later, in the same portion of the who violates the law of the road by driving on

the wrong side assumes the risk of such an excharge, the court said:

periment, and is required to use greater care "You have got to find as an affirmative fact than if he had kept on the right side of the before you make this allowance that he did ag- road, and if a collision took place in such cirgravate his condition by his own act."

cumstances, the presumption is against the par

ty who is on the wrong side-and this: In anWe think that the use of this language was other case cited by the Rhode Island court unfortunate for the reason that the jury these words are used: 'It is legal negligence in might naturally, and would be likely, to un any one to occupy the half of the way approderstand therefrom that without some posi- it in traveling with teams and carriages, and he

priated by law to others having occasion to use tive proof that the rebellious acts of the is chargeable for any injury flowing exclusively plaintiff caused the failure to obtain the best from that cause. The plaintiff's wife had the result, they were to dismiss that subject right to presume that the driver of any team

coming in the opposite direction would duly from their consideration. The word “af-observe the law of the road as she herself was firmative," as used in that portion of the doing, and hence she was not called upon to charge before referred to describes some exercise that degree of care which devolved upthing positive, something declaratory of what on the defendant when taking the wrong side of

the road.' actually exists, something that is a fact. The

"Now you will remember the circumstances of testimony of the physicians and surgeons is the case in which that language was used. simply an expression of their opinion. This That was used with reference to the facts, then opinion is based: First, upon the absence of Angell, was on and had kept on her side of the

before the court, that the plaintiff's wife, Mrs. other conditions which would militate against road and the collision was caused because the a good recovery; and, second, upon the prob- defendant left his right, drove over on his left, able effect of the movements and behavior of and smashed into the plaintiff's buggy; and it

is to be remembered, in considering the opinion the plaintiff. From the very nature of things there, the words of the opinion, that the opinit could not be a matter of positive proof, ion was used with reference to that state of but only a matter of opinion. It was some facts.”. thing, however, which was proper for the It appears from this portion of the charge jury to consider. It was proper for them to that the court read to the jury certain porconsider it in determining whether or not tions of the opinion in the case of Angell v. the failure to obtain the best result was to Lewis, 20 R. I. 391, 39 Atl. 521, 78 Am. St. some extent due to the unwarranted behavior | Rep. 881, as applicable to the case on trial. of the plaintiff himself. We think that the That case was decided prior to the passage

of section 1, c. 87, Gen. Laws 1909, now beyond the central line thereof, and it cansometimes referred to as the "law of the not be reasonably said that in the passage of road.” In the case of Angell v. Lewis, supra, the statute, above quoted, it was the intention the court in its opinion made use of the fol- of the Legislature to confine the passing velowing language:

hicle to such portion of the highway as might “In thus taking the wrong side of the road lie upon the right side of the center line the defendant took the risk of the consequences thereof. Where two vehicles are moving in which might arise from his inability to get out of the way of another team approaching on the the same direction, the one in the rear has right side of the road, and is responsible for i the right to pass the one in front, and such injuries sustained by the latter while exercis- passing is not of and in itself negligence, aling ordinary care. In other words, one who violates the law of the road by driving on the though some portion of the road to the left wrong side assumes the risk of such an experi- of the central line may be encroached upon. ment, and is required to use greater care than The person passing would not be required to if he had kept on the right side of the road; exercise a greater degree of care; he would and if a collision takes place in such circum- be required to exercise such care as the constances, the presumption is against the party who is on the wrong side. And this is especially ditions and circumstances demanded, and if true where the collision takes place in the dark.” he did exercise such care as the conditions

We think that this language of the court and circumstances demanded, he would be in in Angell v. Lewis must be considered in the exercise of due care. connection with the facts of that case in or- In the case of Marsh v. Boyden, 33 R. I. der to get at its intended meaning. That 519, 82 Atl. 393, 40 L. R. A. (N. S.) 582, the case differs in some important particulars court said: from the case at bar. The accident occurred "They would not be held to a greater degree in the darkness of night. The defendant ad- of care as being upon the wrong side of the road; mitted that when he pulled out to pass the in fact the degree of care required was exactteams ahead of him he was not thinking that the other, and that was due care, care propor

ly the same on the one side of the car as upon some one might be coming towards him on tionate to the conditions existing at that time the other side of the road. In other words, and place. * * * If a duty was violated, it the defendant in that case confessedly, with is the duty of using due care under all the cir

cumstances of the case.” out exercising any care whatever, drove upon the left-hand side of the road under cir

We think that in the case at bar the trial cumstances which made it impossible for him court, to some extent, misconceived the case to ascertain or observe the approach of an- of Angell v. Lewis, and gave to the opinion other team. We think that the opinion in therein a greater force or a different conthat case must be limited by the facts there-struction than it was entitled to. in, and that, under the circumstances, the

We think that the jury, from that portion court may have been justified in characteriz- of the charge relating to the law of the road, ing the action of the defendant as an experi- would naturally understand that the presment, the risk of which he assumed.

ence of the defendant's truck upon the left The law regarding the movement of vehi- side of the road was negligence in itself, and cles upon the highway is contained in section that the defendant was therefore responsible 1, c. 87, Gen. Laws of Rhode Island 1909, for the results of the collision, whereas, on and is as follows:

the contrary, the jury should have been in"Section 1. Every person traveling with any structed that the defendant had a right to carriage or other vehicle, who shall meet any pass to the left of the team in front of him, other person so traveling on any highway or bridge, shall seasonably drive his carriage or and would not be responsible for the collision vehicle to the right of the center of the traveled if, in doing so, he acted with such care as part of the road, so as to enable such person the time, place, and circumstances demanded to pass with his carriage or vehicle without of him, or, in other words, if in his attempt interference or interruption. Every person traveling with any carriage or other vehicle to pass by he exercised due care. who shall overtake any other person so trav- The defendant's exceptions numbered 1, 2, eling on any highway or bridge shall pass on the 4, and 5 relate to rulings of the trial court left side thereof, and the person so overtaken shall as soon as practicable drive to the right admitting testimony. These exceptions do so as to allow free passage on the left."

not seem to us to be important for the reason Under this section the rights and duties that we cannot see that the admission of the of parties moving in opposite directions upon testimony was prejudicial to the defendant's the highway, as well as the duty of parties case.

The defendant's sixth exception is apmoving in the same direction, are defined. parently abandoned. The defendant's excepIt is, under this statute, the privilege of a tions numbered 7, 8, and 9 are to the refusal person who may be traveling in the rear of of the court to charge as therein requested, another vehicle to pass such vehicle upon the such refusal being upon the ground that the left side; it being the duty of the one in matters referred to in the requests had aladvance to bear to the right for the purpose ready been covered, and we cannot see from of facilitating such passage. In passing a an examination of the whole charge that the vehicle ahead, it would be necessary in many court was in error. highways to enter upon and occupy, for the [10] The defendant's tenth exception retime being, some portion of the traveled way lates to the refusal of the court to charge the

91 A.-5

« ՆախորդըՇարունակել »