Southerland v. Wilmington & Weldon Railroad

11 S.E. 189, 106 N.C. 100

• Court: Supreme Court of North Carolina
• Decided: February 5, 1890
• Status: Published

Opinion

Avery, J.

after stating (he facts: What an agent says while doing any act within the scope of his agency, characterizing or qualifying the act, is admissible as a part of the res gestie, and may be offered either for or against the principal; but what the agent says afterwards, though his agency may continue as to other matters, or generally, is only hearsay. Sm ith v. Railroad, 68 N. C., 107; McComb v. Railroad, 70 N. C., 178; Branch v. Railroad, 88 N. C., 575.

It was clearly incompetent, therefore, to show, on the part of the plaintiff, by another witness, what the defendant’s engineer, who was in charge of the engine when plaintiff’s intestate was killed, said when examined as a witness at the coroner’s inquest held over the intestate’s body the day after he was killed. The error w;as not cured when Bissett was subsequently introduced by the defendant, and, on cross-examination by plaintiff, admitted that he made the statement at the inquest which plaintiff’s witness had been allowed to repeat. Conceding that it then became competent to impeach him by showing that his former declarations, on oath, were in conflict with his statement as a witness at the trial, such evidence was admissible for that purpose alone, and not to be used as substantive testimony, and it -was the duty of the Judge to tell the jury that they could consider it only as tending to contradict Bissett, and not to sho-w that he was negligent in failing to keep a lookout in order to ascertain whether the track was clear of obstructions. State v. Powell, decided at this term.

His Honor, in his charge to the jury, assumed as a fact not only that the ordinance offered was in force within the corporate limits of the city of Wilmington (which was not controverted), but that there was evidence tending to show that, when the plaintiff’s intestate was killed, the defendant’s train was running so rapidly that the engineer could not control it, and that he (the engineer) knew that the people were in the habit of crossing daily over the bridge. The instruction sent up was confined to the single proposition that these facts, if proven or admitted, constituted negligence on the part of the defendant. If any question of fact was left to the jury in reference to which there was other competent evidence, it was calculated to prejudice their minds against the defendant to permit them to consider with it the testimony erroneously admitted, that Bissett (the engineer) had made certain declarations, and that he had answered in a “light and slack” manner when examined before the coroner so soon after the plaintiff’s death, and especially when they were required to determine whether an engineer who exhibited so little delicacy of feeling and such indifference in speaking of the death of a human being had carelessly lost control of his engine when the train was approaching a bridge over which he knew persons were almost constantly crossing.

It does not appear affirmatively that the instruction set forth in the case on appeal comprehends the whole of the charge; and if it does not, we must assume that the Judge cautioned the jury not to consider the admission by Bissett that he had made the declarations mentioned. State v. Powell, supra. Besides, it was not assigned as error that his Honor failed to tell the jury that such admissions were not substantive but only contradictory testimony. McKinnon v. Morrison, 104 N. C., 354. But the defendant did except to the ruling of the Court admitting proof of the declaration of Bissett before his introduction as a witness, and the testimony was incompetent, being simply hearsay evidence. It is needless to decide whether there was testimony tending to show that the engineer had lost control of his engine, but it was error to submit the question to the jury if there was no evidence to support the affirmative .view of it.

It is not necessary that we should discuss the effect of the city ordinance. If the case should again come before us at all, other points may be presented.

There was error in the admission of the testimony as to Bissett’s declarations, for which a new trial must be granted.

Error.