Blackman v. W. Jersey & S. R. Co.

• Decision Date: 16 June 1902
• Citation: 68 N.J.L. 1,52 A. 370
• Parties: BLACKMAN v. WEST JERSEY & S. R. CO.
• Court: New Jersey Supreme Court

52 A. 370

68 N.J.L. 1

BLACKMAN

v. WEST JERSEY & S. R. CO.

Supreme Court of New Jersey.

June 16, 1902.

Action by Alice B. Blackman against the West Jersey & Seashore Railroad Company. Rule to show cause why a verdict for plaintiff should not be set aside. Rule absolute.

Argued February term, 1902, before GUMMERE, C. J., and VAN SYCKEL, GARRISON, and GARRETSON, JJ.

John W. Wescott, for plaintiff.

Joseph H. Gaskill, for defendant.

GUMMERE, C. J. the plaintiff was injured by a fall received by her while alighting from a trolley car of the defendant company. At the trial she offered herself as a witness in her own behalf, and having stated that her fail was caused by the sudden starting of the car while she was on the running board, and that it was stopped again as soon as possible after she was thrown, and that the conductor then came to her and helped, her up, was then asked what the conductor said to her, if anything. The question was formally objected to, but was permitted upon the ground that what the conductor said was part of the res gestae. The answer was: quot;'It is too bad,' he says, 'Are you hurt?' I said to him: 'I signaled you to let me get off, and you answered me.' He said: 'I know I did, but I forgot you. It is entirely my fault'" The rule with relation to the admission of declarations upon this ground is that where the declaration is concomitant with the main fact under consideration, and is so connected with it as to illustrate its character, it may be proved as a part of the res gestae; but, where it is merely narrative of a past occurrence, it cannot be received as proof of the character of that occurrence. Greenl. Ev. § 108; Castner v. Sliker, 33 N. J. Law, 95, 97. Tested by this rule, we think the question should have been excluded. If the words attributed to the conductor had been exclamatory, and coincident with the happening of the accident, they would undoubtedly have been illustrative of its character, and proof of them would have been admissible. They were, however, not spoken until after the accident had occurred; and, although the time which had elapsed between the happening of the accident and the making of the declaration was very short, still the words were merely narrative of the conditions which had brought it about. It is suggested that the testimony was competent as the admission of an agent of the defendant company, which bound the principal. The allowance of the question cannot be supported on this ground. It is only words which are spoken or acts which are done by an agent in the execution of his agency which are admissible in evidence against the principal. Ashmore v. Transportation Co., 38 N. J. Law, 13. The admission of the conductor was manifestly not made in pursuance of his duty to his employer, and cannot bind the latter. The admission of this testimony was error.

Another reason advanced by the defense for setting aside the verdict in this case is that counsel for the plaintiff, in his address to the jury, far exceeded his privilege, by laying before them facts which had not been proved, and which they had no right to consider, and insisting that they should take those facts into consideration in making up their verdict in discussing the question of the amount of damages which the plaintiff was entitled to recover, counsel said: "In considering that point bear in mind that this girl, if her physicians are correct, unfortunately is robbed of a great deal. She not only has not enjoyed life, but she never, probably, will enjoy life again. She has not been a mother. She never can be a mother." At this point counsel for the defendant excepted to the statement on the ground that there was no proof whatever in the case that the plaintiff could not become a mother. The trial judge declined to rule upon the exception, and permitted counsel for the plaintiff to proceed, which he did in the following language: "I was remarking, gentlemen of the jury, that this girl was a single lady; that, upon the theory that her physicians are correct, she never can be cured of this difficulty, —she never can become a married woman and a mother,—and therefore is deprived of one of those pleasures and rights which belong to vigorous, well-organized women, and especially a woman of her type and accomplishments. This is a loss to her which this jury ought to take into consideration." It is not denied that the case is barren of evidence which...