82 Ga. 452 | Ga. | 1889
The charge of the court in the 14th ground of the motion was as follows: “If the jury should believe from the evidence in the case that the train on which the plaintiff was as fireman, was approaching another train
This might have been understood by the jury as virtually throwing out of the case any and all negligence the plaintiff’ may have been chargeable with until just before the collision took place, and was, besides, an intimation to the jury that the conduct of the plaintiff, if as described in the charge, would not amount to negligence. But for this instruction the jury might have thought, in view of what had already transpired within the plaintiff’s knowledge showing the tendency of the engineer to go to sleep, that it was not énough for the plaintiff’ to see that he was awake and then seat himself at the place assigned to him, but that he ought to have continued to see to it and assure himself that the engineer kept awake. The charge seems obnoxious to both the objections which we have indicated, viz. a too narrow restriction in point of time, and a too wide latitude in drawing to the court and taking from the jury a decision of the question of negligence.
Having had their origin many days after the happening of the events to which they related, they were no part of the res gestae of the cause of action on trial, but were mere narrative touching past occurrences. Consequently they do not fall within the principle of the case cited from 33 N. W. Rep. 867, (Keyser vs. Chicago & G. T. R’y Co., decided by the Supreme Court of Michigan in June, 1887.) Meachem on Agency, §§714, 715; Code, §2206. Nor is Carlton vs. W & A. R. R. Co., 81 Ga. 531, a decision upon the question. of their admissibility. As far as that case goes is to suggest that they were not confidential communications, but really even that question was not involved so as to render a decision of it necessary. Hpon principle, we think it clear that these reports were inadmissible; and several authorities which we deem sound are to that effect. In Langhorn vs. Allnutt, 4 Taunt. 511, it was held that letters of an agent to a principal, in which he
“ An admission by a corporation of a fact or liability, duly and properly made, is of course evidence, against it; but a municipal corporation, by accepting, that is, by receiving, the report of a committee of inquiry, does not admit the truth of the facts stated therein, and such a report, though accepted by the vote of the corporation, is not admissible in evidence against it. 1 Dillon Munic. Corp., 3d ed. §305, (earlier editions, §242.)
The case of the Vicksburg & Meridian R. R. Co. vs. Putnam, 118 U. S. 545, was cited and relied on in behalf of the plaintiff. The opinion was delivered by Mr. Justice Gray, who devotes but a single sentence to the question, merely saying: “ The reports made by the superintendent to the board of directors in the course of his official duty, were competent evidence, as against the corporation, of the condition of the road.” Looking to the statement of facts prefixed to that opinion, we find it represented that “ the plaintiff offered in evidence two printed reports made by the supei’intendent of the road to the board of directors, one'in 1877, which stated that in the portion of the road where the heaviest
The case of Krogg vs. Atlanta & West Point R. R. Co., 77 Ga. 202, was also cited and relied upon. The evidence held competent in that case consisted of declarations made by the general manager, some of them relating to the condition of the track, and some to the cause of the accident, which he attributed to too much elevation of the superstructure on one of the curves of the road. It would seem that the admissibility of this evidence was put by the court partly upon the ground that the general manager represented the corporation in making the statements, (which, by the way, were not made as reports to the company or any superior officer, but as mere oral declarations,) partly upon the ground that they were embraced in the res gestae, and partly upon the ground that they showed his knowledge, and therefore the knowledge of the corporation, as to the improper construction and condition of the road before the accident. We need not comment upon this case further than to observe that its facts are so different from those of the case in hand that the one cannot
Judgment in the main case affirmed, on the cross-bill of exceptions reversed.