Donovan v. Boston & M.R. Co.

• Decision Date: 07 March 1893
• Citation: 33 N.E. 583,158 Mass. 450
• Parties: DONOVAN v. BOSTON & M.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 450

33 N.E. 583

DONOVAN v. BOSTON & M.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 7, 1893

COUNSEL

George A.O. Ernest and Frank D. Allen, for plaintiff.

Walter I. Badger and Thomas Hunt, for defendant.

OPINION

BARKER J.

The questions for decision arise from the admission as evidence for the defendant of entries from a telegraphic train report sheet kept in its train dispatcher's office in Boston. It was in dispute whether the approach of an inward train at 5:02 P.M. was hidden from the plaintiff by an outward train delivering passengers at the East Somerville station, in the vicinity of which the accident occurred. Witnesses for the defendant testified that there was no such outward train that one passed without stopping at 4:52, and that no other passed or stopped until 5:12; and entries from the train sheet, with the testimony of the person who made them, were admitted to show that outward trains passed at 4:10, 4:13, 4:21, 4:52 5:12, 5:13, and 5:33 P.M.

1. The plaintiff now contends that the entries should have been excluded, because they did not tend to show that no outward train was at the station at 5:02, the sheet not purporting to contain reports of all outward trains; but the bill of exceptions does not show that this ground of objection was stated at the trial; and from all that appears we cannot say that even in this view the entries were immaterial. Upon the plaintiff's testimony, he might claim to the jury that the outward train, to the presence of which he had testified, was one which should have been reported on the sheet; so that the entries, if competent, were material in that aspect of the case, if in no other.

2. The plaintiff having objected to the competency of the train sheet, also excepted to the admission of testimony explaining how it was made and used, and that it was part of a system customarily used by the defendant for 30 years. Such evidence was competent to show that the sheet was made in the ordinary course of the defendant's business, and to enable the court and jury to interpret its statements. If the plaintiff desired to have its effect limited, he should have requested such instructions.

3. Some statement of details is necessary in discussing the competency of the entries. The sheet was a form or blank, ruled in columns and cross lines. Each train to be reported had a column, designated by its train number, and the names of the stations were in order upon the cross lines. When the sheet was in use, figures were from time to time entered upon it by a person whose duty it was to enter them, and who was the witness producing it. Figures so entered indicated that the train to which that column was assigned left the station specified at the hour and minute denoted by the figures. The sheet was kept under the eye of the train dispatcher in his office in the Boston station. When a train left that station, the time of departure was entered; when a train left or passed any other station where there was a telegraph, an operator in that station immediately telegraphed to the dispatcher's office a statement of the time when the train passed, and also entered the time on a sheet in his own office. The messages so sent to the dispatcher's office were there received from a telegraphic instrument by a telegrapher, who at once made the entries upon the sheet. The sheet thus showed to the dispatcher between what stations each designated train was at each moment; and he controlled the movements of trains, using this information; but the person who made the entries had no personal observation of the train, and the truth of the entries rested upon the statements of the operators at the stations. The telegrapher who received the messages and entered them upon the train sheet in the dispatcher's office was produced as a witness. The sheet of entries made by the operator at the East Somerville station was also produced and identified; but the Somerville operator was no longer in the defendant's employment, and was not produced; his handwriting was not proved, and it was shown that his whereabouts were unknown; and upon the plaintiff's objection the East Somerville sheet was excluded. Under the plaintiff's exception to the ruling that the dispatcher's sheet was competent evidence, entries from it were then read to the jury, showing the times when trains passed East Somerville. The failure to produce the East Somerville operator is relied upon by the plaintiff as one ground for his contention that the entries were not shown to be competent evidence. Upon this point he cites the cases of Kent v. Garvin, 1 Gray, 148, and of Miller v. Shay, 145 Mass. 162, 13 N.E. 468, which held that book charges for goods delivered by a servant whose entries or marks are transferred to his master's account book are inadmissible, unless the servant is called to support the charges and prove the delivery. But no entries were transferred to the dispatcher's sheet from the sheet kept at the East Somerville station. As telegraphic messages are read by sound, as well as automatically recorded in symbols, these entries stand upon the same footing as if made from oral statements uttered at the indicated station, and audible in the dispatcher's office; or in view of the symbols in which the manipulation of his instrument by the operator who sends the message makes it visible at the receiving station, the entries are as if made from his signals given at East Somerville, and visible in the dispatcher's office. These entries are not, therefore, governed by the rule applied in the cases on which the plaintiff relies.

4. The principal question is whether the train sheet, with the testimony of the witness who made the entries upon it, was competent evidence for the defendant. It is clear that the sheet was worse than useless if its statements, as seen by the dispatcher, were not accurate. Every interest of the defendant demanded that an entry, when made, should be true and no reason can be conceived why the...