57 Minn. 81 | Minn. | 1894
The nature of this controversy will be seen upon an examination of the opinion rendered on a former appeal. 53
Briefly stated, the plaintiff was allowed to refresh his memory for the purpose of testifying by the examination of figures which he had transcribed from a book into which his foreman, who had no personal knowledge of the matter, had copied what appeared upon a tally board kept by still another of plaintiff’s employés. We quite agree with counsel for respondent that much discretion must rest with the trial judge when permitting a memorandum to be used for the purpose of refreshing the memory of a witness, but the ruling of the trial court now before us cannot be sustained on that ground.
The rules under which a witness may be permitted to refresh his memory by the use of writings are fully stated in 1 Greenl. Ev. §§ 436, 437. According to the authorities, it does not seem to be necessary that the writing used should have been made by the witness himself, nor that it should be an original writing, provided, after inspecting it, he can speak of the facts from his own recollection. Here the witness had no knowledge, and consequently no recollection, of the number of logs unloaded at the landing, except as he had been told or informed by his foreman,
We think the admission of this testimony was prejudicial to the defendant, and that a new trial must be had.
Order reversed.
(Opinion published 58 N. W. 827.)