Lane v. Bryant

75 Mass. 245

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1857
• Status: Published

Opinion

Bigelow, J.

1. The instructions asked for by the defendant were rightly refused, and those given were accurate and well adapted to the facts in the evidence.

2. 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, on which the whole case turned, 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 gesta. It is no more competent because made immediately after the accident than if made a week or a month afterwards. Land v. Tyngsborough, 9 Cush. 36.

Nor was the evidence admissible to contradict the testimony of the defendant’s servant. He was asked on cross-examination by the plaintiff’s counsel whether he did not excuse the plaintiff from blame at the time of the accident. His answer to this question could not be contradicted by the plaintiff. It was irrelevant and immaterial to the issue. The opinion of the witness on the subject was incompetent. The real question was, who was actually to blame, and that was to be determined by the jury by the facts in the proof. The plaintiff was not bound by the opinion or declaration of his servant on this question.

Exceptions sustained.