75 Mass. 244 | Mass. | 1857
The exception must be sustained, which was taken to the admission of the plaintiff’s statement to his physician that his leg had been struck by a horse. It was a statement of a fact, and was used as evidence of that fact. It was therefore wrongly admitted. Willis v. Bernard, 8 Bing. 382. The rule of evidence, in cases like this, was rightly announced by Mr. Justice Bigelow, in Bacon v. Charlton, 7 Cush. 586, as follows : “ Where the bodily or mental feelings of a party are to be proved, the usual and natural expressions of such feelings, made at the time, are considered competent and original evidence in his favor. There are ills and pains of the body, which are proper subjects of proof in courts of justice, which can be shown in no other way. Such evidence, however, is not to be extended beyond the necessity on which the rule is founded. Anything in the nature of narration or statement is to be carefully excluded, and the testimony is to be confined strictly to such complaints, exclamations and expressions as usually and naturally accompany, and furnish evidence of, a present existing pain or malady.” The defendants are entitled to a new trial, in consequence of the admission of the plaintiff's statement. Exceptions sustained.
