Downer v. Town of Strafford

47 Vt. 579

• Court: Supreme Court of Vermont
• Decided: February 15, 1874
• Status: Published

Opinion

The opinion of the court was delivered by

Wheeler, J.

This evidence as to what George said about the cause of the accident, was not a part of any transaction that was at all material to the case. He was holding the horse and talking, but was not talking about what he was then doing. He was talking about what had previously taken place, although but recently. His statement was a narrative of a past transaction, and not a material part of a present one. Such statements are not admissible because they are made about matters so recent that the witness cannot have forgotten, nor have had time to concoct the statement, but only because they are material parts of a transaction then going on, or would qualify or modify something then being done. Eddy v. Davis, 34 Vt. 209; Worden v. Powers, 37 Vt. 619. As the case stood, this saying, although very near in point of time to the main transaction, was after it, and was merely hearsay, and not evidence that the fact was as he said it was. Luby & wife v. Hudson R. R. Co. 17 N. Y. 131.

Judgment reversed, and cause remanded.