Wood v. Rio Grande Western Ry. Co.

• Decision Date: 31 December 1904
• Docket Number: 1577
• Citation: 79 P. 182,28 Utah 351
• Court: Utah Supreme Court
• Parties: PAUL WOOD, Respondent, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, a Corporation, Appellant

79 P. 182

28 Utah 351

PAUL WOOD, Respondent, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, a Corporation, Appellant

No. 1577

Supreme Court of Utah

December 31, 1904

Appeal from the Seventh District Court, Carbon County.--Hon. Jacob Johnson, Judge.

Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED.

Messrs Sutherland, Van Cott & Allison, William D. Riter, Esq., and S. R. Thurman, Esq., for appellant.

The court erred in refusing to admit in evidence the record of inspection of the car C. P. 90727, kept by L. R. Rogers, upon proof of his handwriting, that the record was kept in pursuance of his duty, and the entry was made at the time of his inspection, it being shown that he was beyond the jurisdiction of the court.

In considering the question involved in the foregoing proposition, the distinction between the cases which hold that a written memorandum may be admitted in evidence irrespective of whether the person making it is dead, insane or beyond the jurisdiction of the court, and those which hold that as a prerequisite to the admission of such evidence, the death, insanity or absence of the witness from the jurisdiction of the court must first be shown, is to be carefully borne in mind. There are cases which go to the extent of holding that where entries are made in the due course of business and contemporaneously with the event recorded, they are admissible as original evidence of the fact recorded, as part of the res gestae, when the person who made them is living and accessible, but as to this the authorities are in conflict. The modern tendency seems to be to admit such entries as original evidence. 1 Greenl. Evidence (16 Ed.), p. 837, sec. 115 et seq.; p. 204, sec 120; 2 Jones on Evidence, sec. 324; 9 Ency. Law (2 Ed.), p 939; Railroad v. Ingersoll, 65 Ill. 399.

There is much to commend this rule thus broadly laid down. While there are cases to the contrary, we think the weight of authority is in favor of it, and the modern tendency is certainly in the direction of its full acceptance. However in the case at bar, we are not required to rely upon this rule. The evidence shows that the person who made the entry was beyond the jurisdiction of the court, that it was made in the ordinary course of his business, and contemporaneously with the fact.

There are three cases where the restricted rule has been announced; first, where the person making the memorandum is dead; second, insane; third, beyond the jurisdiction of the court. It is held by all the authorities that where the witness is dead or insane an entry will be admitted as original evidence because of the necessity of the case.

In 2 Jones on Evidence, section 323, the author says: "It has long been a settled rule of law, both in England and in this country, that a minute or memorandum in writing, made at the time when the fact it records took place by a person, since deceased, in the ordinary course of his business, corroborated by other circumstances which render it probable that the fact occurred, is admissible in evidence." Roberts v. Rice, 45 A. Rep. 237; Lassone v. Railroad, 17 L.R.A. 525. The question in this case is whether the same rule applies where the witness is not shown to be dead, but is shown to be beyond the jurisdiction of the court. Upon this question, while there is some slight conflict in the authorities, the overwhelming weight is in favor of the rule admitting the testimony, and in such case as in the case where the person making the entry is dead, the entry is admitted as original evidence of the fact recorded. 1 Greenl. (16 Ed.), sec. 120a; 2 Jones on Evidence, sec. 324.

In a note in the 15th American Decisions, 190, the same rule is stated in the following language: "The principle governing the admission of such books upon proof of the handwriting has, in the majority of States, been extended to include entries made by clerks without the jurisdiction of the court." Heiskell v. Rollins (Md.), 33 A. 263; James v. Wharton, 3 McLean 492, 13 F. Cas. 322; Vernam v. Chandler, 15 Tex. 441; Elms v. Chevis, 2 McCord L. 349; Garribrant v. Wood, 4 Pa. S.Ct. 391; Bolling v. Fannin, 12 So. 59 (Ala.); Hay v. Craner, 2 Watts & S. 137; Reynolds v. Mannin, 15 Md. 510; Cummings v. Fullom, 13 Vt. 434.

In Allen v. Birdhouse, 8 Watts (Pa.) 77, where it is said "that absence from the State, as far as it affects the admissibility of secondary evidence, has the same effect as the death of the witness." 1 Smith's Leading Cases, 571, where it is observed: "And the admissibility of entries by a clerk who is out of the State or the jurisdiction of the court on proof of his handwriting is abundantly settled." Our own Supreme Court seems to recognize the rule in the case of Dyer v. S. L. City Mfg. Co., 14 Utah 339.

The contrary rule has been held in only two or three States. Jones cites only two cases to the contrary, namely: Brewster v. Doane, 2 Hill (N.Y.) 537; Moore v. Andrew, 5 Porter (Ala.) 107; 2 Jones, sec. 324. Later cases in both States seem to have departed from the rule. In Bollin v. Fannin (Ala.), 12 So. 59, the court says: "If he is dead or insane, or beyond the jurisdiction of the court proof of his handwriting will be sufficient." This is in direct conflict with the earlier holding in 5 Porter.

In Brewster v. Doane, supra, the Supreme Court of New York held that "if the person who made the entry be still living, though out of the State, he must be called or examined on commission; otherwise his entry or memoranda can not be received."

Counsel will insist that he is entitled to take advantage, upon this motion for a new trial, of the technical objections now urged to the admission of the evidence, notwithstanding the fact that specific objections were stated upon the trial, and that these particular objections now urged were not stated. This position is contrary to every authority in the books.

Cases may be cited to the point that where a general objection is made which is sustained, the ruling will not be disturbed if for any reason included within the general objection such ruling can be upheld. Although authorities can be found to the contrary of this, it is not the proposition which we make. Our contention is that where a specific objection is made, all other objections are waived, and if such objection is sustained by the court, the ruling will not stand unless the specific objection urged is found to be good. We call the court's attention to a few cases out of a large number to this effect.

Bailey v. Railroad, 19 L.R.A. 653, 657, holding that where defendant objected to a question as not responsive, he waived all other objections. "The ground of objection having been particularly stated, all other grounds waived." State v. Leehman, 49 N.W. 3, 7; Alexander v. Thompson, 44 N.W. 534; People v. Manning, 48 Cal. 335, 338.

People v. McCauley, 45 Cal. 146, 148, holding that a party can not abandon the ground of objection taken to a question put to a witness on the trial below and assume another on the appeal. Agricultural Works v. Young, 62 N.W. 432, 434; McDonald v. Stark, 52 N.E. 37, 39; Railway v. Nix. 27 N.E. 81, 82; Evanston v. Gun., 99 U.S. 660, 665; Rush v. French, 25 P. 816, 822, 823, 824. We call the court's particular attention to this case. It is an exhaustive and admirable discussion of the question.

That it makes no difference whether the objection is overruled or sustained but that the ruling will be reversed where the court has excluded testimony upon a specific objection unless that very objection is good, is likewise borne out by all the authorities. Rush v. French, 25 P. 822; Hanson v. M. M. Mutual Ins. Co., 45 Wis. 321; Cary v. White, 59 N.Y. 336, 340; People ex rel. Sears v. Tobey, 153 N.Y. 381, 399; Cummin v. Wilcox, 47 Mich. 501; Eisert v. Brandt, 31 N.Y.S. 121; McKnight v. Devlin, 52 N.Y. 399, 403.

The court erred in instructing the jury that the defendant was bound to use all reasonable care and caution to provide suitable and safe cars for the use of its employees and in charging that it was the duty of the master to furnish a safe place and safe appliances for the servant, inasmuch as the rule invoked is not applicable to the facts of this case. One of the indisputable facts in the case is that the car in question did not belong to the defendant company but belonged to a foreign company, and that it was received by the defendant company simply for transportation over its lines from Ogden to the coal mines and return. In the face of this testimony, a finding of the jury to the contrary would be clearly erroneous. Now the rule, we think, is established by the authorities that the duty of a railroad company with reference to foreign cars received by it from connecting lines simply to be transported over its own lines is not the same as where it owns the car. In the case of foreign cars the duty of the railroad company is that of inspection. If it is shown that a reasonably careful inspection has been made, its duty to its servants has been discharged. The duty is not that of furnishing safe appliances. The distinction is of vital importance. This being the rule of law, the plaintiff by presumption of law is held to know it. When, therefore, he goes upon the car in the performance of his duty as brakeman, he has a right to assume not that the master is bound to furnish safe appliances, and has discharged that duty, as the court erroneously charges, but to assume that the master has made a reasonably careful inspection to ascertain whether any defects existed. Railroad v. Myers, 63 F. 793-799, 76 F. 443; Railroad v. Mansberger, 65 F. 196-197; Keith v. Railroad, 140 Mass. 175; Railroad...