Williamson v. Cambridge Railroad

W. Allen, J.

This case cannot be distinguished from Lane v. Bryant, 9 Gray, 245 . That was an action for injury to the plaintiff’s carriage by collision with the defendant’s wagon driven by his servant. A witness was asked “ what the servant ■ said to the plaintiff at the time of the accident, and while the plaintiff was being extricated from his carriage, and while the crowd was about.” The reply, that the servant said the plaintiff was not to blame, was admitted, and an exception to ■its admission was sustained. Mr. Justice Bigelow, in delivering the opinion of the court, said, in language which well applies to the case at bar: “ The declaration of the defendant’s servant was incompetent, and should have been rejected. It was made after the accident occurred, and the injury to the plaintiff’s carriage had been done. It did not accompany the principal act, .... or tend in any way to elucidate it. It was only the expression of an opinion about a past occurrence, and not part of the res gestee. It is no more competent because made immediately after the accident than if made a week or a month afterwards.”

In the case under consideration, the plaintiff relied upon the act of the conductor in ringing the bell and starting the car while the plaintiff was leaving it, to prove negligence in the defendant. The words of the conductor did not form part of that transaction, or in any manner qualify his act, or any act of the plaintiff. They were in form and substance narrative, and expressed an opinion upon a past transaction. The words, if competent as an admission, might have been evidence to show what the character of the transaction was, but they did not enter into it and give it character, any more than would the declara- ■ ti on of the conductor that he had not been in fault, or that the plaintiff had been. In the opinion of a majority of the court, . the evidence was properly excluded.

The contents of the application for insurance by the plaintiff were provable by secondary” evidence. Binney v. Russell, 109 Mass. 55 . Any secondary evidence was competent. Goodrich v. Weston, 102 Mass. 362 . The witness produced a paper which *151 purported to be a' copy of the application made by the plaintiff, and which contained printed questions and written answers thereto. He testified that he took the plaintiff’s application, using a printed blank such as that produced; that he wrote down her answers on the blank, which she afterwards read and signed; and that the paper produced was an exact copy of that signed by the plaintiff. We think that the evidence was sufficient to authorize the admission of the paper in evidence. The printed questions were clearly admissible. It is equally clear, that oral testimony of the contents of the written answers was competent. The witness could state orally from memory what the answers were. It was in the discretion of the court to allow him to write down the answers which he remembered had been written by him, and read and signed by the plaintiff, in the places upon the printed form in which they were in the original paper. If he could write them himself, he could testify to their correctness when written by another. The paper did not go to the jury as an examined copy, authenticated by comparison with the original, and of itself evidence, but as showing what the original was, as testified to by the witness from his recollection of it. We think that it was within the discretion of the court to allow it to go to the jury. Exceptions overruled.