103 Minn. 297 | Minn. | 1908
Plaintiff and appellant was hired by defendant and respondent as an ordinary shoveler. A few hours before he was hurt, defendant directed him to assist in taking heavy timbers from the first floor to the second floor of the building defendant was constructing. Plaintiff had been, between four and five hours before the accident, standing on some small boards. Some time later he was found in the basement beneath. He had struck his head upon a stake, crushed his skull, and suffered other serious injuries. He was called as a witness; but his memory had been destroyed, and he knew nothing of what had occurred. Plaintiff’s wife, who talked little English 'and understood it imperfectly, testified that after the injury defendant paid her a considerable sum weekly and promised future assistance. She •also testified that he said to her: • Don’t cry, I know it was my fault, ■not your man’s. I know your man was hurt bad. That was not your man’s fault. The payments to the wife decreased, and finally ceased. The defendant was in court at the time of the trial, but did not explain, qualify, or deny the wife’s testimony. He was cross-examined under the statute as to the name and whereabouts of an eyewitness ■only. Verdict for defendant was directed. This appeal was taken from an order of the trial court denying plaintiff’s motion for a new trial.
We are of opinion that the trial court’s conclusion was correct. There was no evidence that the master was actionably negligent in not supplying a reasonably safe place in which to work; for it was
The essential question in the case is whether under these conditions liability may be predicated upon defendant’s admissions, donations, and promises of assistance. The paucity of specific authorities on the subject is significant. On the one hand, it was, however, held in Kitchen v. Robbins, 29 Ga. 713, that admission of an innkeeper that his guest has lost goods in his house, when proven by a witness who heard the admissions is sufficient proof of the fact of loss to authorize the introduction of evidence to show the amount' of the loss, although the innkeeper, when put on the stand as a witness by the .other party, may state that the admissions by him were founded solely on statements made to him by the plaintiff. In Barber’s Adm. v. Bennett, 60 Vt. 662, 15 Atl. 348, 1 L. R. A. 224, 6 Am. St. 141, an assignee sued in assumpsit for a board bill. The defense introduced admissions of the creditor that defendant had paid his board. It was held that the declarations of a party in interest, when relevant to the issue, are admissible and competent as tending to prove a defense, and that it was error to limit such declarations to merely impeaching testimony. On the other hand, in Swift v. Grant, 90 Mich. 469, 51 N. W. 539, it was held that, if the defendant was not legally liable by reason of his negligence, his admission, if made, would not create such liability.
No case has been called to our attention, nor have we been able to find one, in which liability for negligence has been based on admissions aloné. This conforms to the general conception of the nature of admissions as evidence. Prof. Wigmore says: “The primary use
Admissions tending to show negligence are usually received in evidence. Gulf v. Calvert, 11 Tex. Civ. App. 297, 32 S. W. 246; Cooper v. Central, 44 Iowa, 134; Helman v. P. C. C. & St. L. Ry. Co., 58 Oh. St. 400, 50 N. E. 986, 41 L. R. A. 860. Courts, however, quite generally refuse to give to them any final or conclusive effect. “Slight credit will be given to the unsupported evidence of a witness who-testifies to admissions obtained by him from a party for the purpose-of charging him thereby.” Sunday v. Gordon, Fed. Cas. No. 13,616, 1 Blatchf. & H. 569. And see Dreher v. Town, 22 Wis. 675, 99 Am. Dec. 91; Allen v. Young, 6 T. B. Mon. (Ky.) 136, 17 Am. Dec. 130. Cf. Higgs v. Wilson, 3 Mete. (Ky.) 337. But see 1 Shear. & Red. Neg. § 60a. “Testimony as to naked admissions, given by witnesses who, though not parties to the record, are in close sympathy and interest with the party calling them, is one of the most untrustworthy kinds of evidence.” 1 Greenl. Ev. § 200. In Lench v. Lench, 10 Ves. 518, Sir William Grant says: “This is in all cases most unsatisfactory evidence, on account of the facility with which it may be-fabricated and the impossibility of contradicting it. Besides, the slightest mistake or failure of recollection may totally alter the effect of the declaration.” This was approved by the chancellor, in Botsford v. Burr, 2 Johns. Ch. (N. Y.) 412, and by Story, J., in Smith v. Burnham, 3 Sumn. 435, Fed. Cas. No. 13,019. “Usually the witnesses
In determining what weight shall be given to admissions, courts consider two circumstances in particular — the extent of personal knowledge, and the character of the admission, whether concerning law or fact. An admission not based on personal knowledge may be admissible. Kitchen v. Robbins, 29 Ga. 713; Shaddock v. Town, 22 Wis. 110, 114, 94 Am. Dec. 588; Chapman v. Chicago, 26 Wis. 295, 303, 7 Am. 81; Wasey v. Travelers, 126 Mich. 119, 125, 85 N. W. 459; Sparr v. Wellman, 11 Mo. 230. But an admission evidently made without personal knowledge of the facts admitted, or a statement inconsistent and contradictory, indefinite or equivocal, and not elucidated by further proof, may have little or no weight as evidence. 16 Cyc. 1045. And see Maher v. Empire, 110 App. Div. 723, 96 N. Y. Supp. 496. An admission of a mere legal conclusion is not binding. Crockett v. Morrison, 11 Mo. 3 (collecting earlier cases at page 5); Rawlings v. Neal, 122 N. C. 173, 29 S. E. 93 (where the admission was of an erroneous proposition of law); City v. Beckman, 34 Mich. 125, 22 Am. 507 (where the court was held not bound to accept a concession on trial of the city’s liability for the injury complained of). And see Reed v. McCord, 160 N. Y. 330, 54 N. E. 737, and Gulf v. Calvert, 11 Tex. Civ. App. 297, 32 S. W. 246 (in which an acknowledgment that the party was himself to blame was regarded as mere self-censure).
The testimony concerning donations and promises of future assistance do not require the court to submit the case to the jury. Plaintiff quotes in this connection from Sias v. Consolidated, 73 Vt 35, 40, 50 Atl. 554, 555: “Plaintiff was permitted to testify that the defendant furnished him a nurse. The testimony was offered as tending-to show a recognition of liability, and the defendant objected to it as having no such tendency. The court below took the ground that it could not say as matter of law that it had no such tendency, but: that it should be submitted to the jury for them to say whether, in view of all the circumstances, it had that tendency or not. That was-right, if the case presented circumstances which tended to characterize the act as a recognition of liability; but we have found nothing" of this nature in our examination of the testimony. It is doubtless-true that such evidence might be offered in a connection that would;
Affirmed.