125 N.E. 677 | NY | 1920
The two actions are based upon the alleged negligence of the defendant Jacob Fradus, by which personal injuries to the infant Nicholas Gangi were caused. The one is in behalf of the infant; the other in behalf of his father for the loss of his services. They were tried together, and a verdict in favor of each plaintiff was rendered. The Appellate Division unanimously affirmed the consequent judgments, that in favor of the father being first modified by a reduction in its amount.
The judgments must be reversed, because of errors in the charge of the trial justice to the jury. Upon the trial statements or admissions by the infant plaintiff contradictory of the cause of action were introduced in evidence by the defendant. Concerning them the trial justice in his main charge instructed the jury: "In regard to the evidence adduced by the defendant company, called generally evidence of admissions against the interest of a person, that matter is to be considered and you are to ascribe to it such weight as you consider is a proper amount of consideration or weight to be given to it. Of course, such evidence is not equal in weight or *455 value to that given by disinterested witnesses who are in a position of observation of the truth with respect to the manner of the happening of the accident. * * * It is as a matter of law regarded as probatively weak evidence — that is, admissions of one party said to have been made to another, or to the representative of another, have not a high degree of quality in evidence. It is evidence, however, which has probative value provided it be believed, and if you concluded that the boy stated to this employee of the defendant and in the presence of the other persons employed for the purpose of attending there, that he got up and ran into the truck; if you believe that that coincided with the evidence as to what actually happened, then you would find accordingly and against the infant. If, however, you believe either that the matter taken down did not contain any such statement from the boy, or that if such statement was made by the boy it was under the pressure of the interview, whether inadvertently or not, you have the power of disregarding the evidence of admission against interest, as either not probative enough to satisfy your minds or made in such manner as not to beget an assurance and accuracy which is necessary to find the truth. * * *." In response to defendant's exception, "I except to Your Honor's statement that the admissions of the infant plaintiff were not entitled to be received as having much probative value," the trial justice said: "I did not say precisely that. I said that they were not of a high degree in quality of proof, but I said if they believed them, and found that there was proof of that character that conformed to the other evidence in the case, and that they were convinced that the statements were made and were accurate as made, then the boy could not recover. * * * I said that admissions against interest when proven by witnesses called by the adversary are not of a high degree of quality in probative value. * * * I said they are not of a high degree of quality of probative value considered *456 by themselves. It is a degree of evidence which is not as high a degree of evidence as some other kinds of evidence, but if believed it is just as good as any other kind of evidence, and jurors may follow it if they think it is sufficiently probative to their minds."
The charge, as given, was fundamentally erroneous and prejudicial. While the discernment of the real instruction or guidance, if any, it imparted is difficult and uncertain, certain it is that it was ill-conceived and misleading. There is not a rule of law that admissions of a party to a civil action are probatively weak evidence, or have not a high degree of quality in proof, or have probative value provided they are believed, or are dependent for an effect upon coincidence "with the evidence as to what actually happened" or a conformity to the other evidence in the case. The admissions of the infant plaintiff were in evidence and, in the action in his behalf, at least, properly. They to an extent contradicted or were inconsistent with his claim or cause of action. In a civil action, statements made out of court or of judicial proceeding or record, or, as they are denominated, extra-judicial admissions, by a party to the action, adverse to his claim, are evidence against him that the facts they state are true. (Koester v. Rochester Candy Works,
The trial justice should also, as the evidence makes useful and proper, instruct the jury concerning the degree of scrutiny and caution in determining whether or not the admissions were in truth made. Judicial opinion *458 is, at times, not clear, if not misleading, through treating without distinguishment the evidence of the making of the admission with that of the contents of the admission. The making of an admission of strong effect may have in support only faint and dubious evidence, without justifying the declaration that admissions are a weak or dangerous kind of evidence. The weakness or danger is, in such case, in the proof of the making and not in the contents of the admission. Instructions of scrutiny and caution, as the evidence warrants, in accepting the admissions as made, may well be given. To remember and narrate accurately the statements of another is difficult. The narrator may be thoroughly honest in his belief that he has given the exact words of the admission, and be mistaken. Transposition of a word or words in the narration may give a meaning other than the real. A listener is liable to misunderstand or forget what was really said or intended by the declarant, or to incorrectly relate it. A word, or a look, misunderstood, may produce upon his mind a meaning different from that which the declarant intended to convey. The declarant may not have expressed his meaning. Admissions are easily fabricated or imagined. Differing conditions may require or should receive from the jury varying degrees of scrutiny, analysis and caution. It is entirely proper for the trial justice, if the evidence permits, to bring to the attention of the jury the considerations stated, or others of similar character, as reasons for caution and a careful and zealous scrutiny of the evidence of the making. They are such as to impress any man of common sense. We repeat, it is, however, for the jury to determine whether or not the admissions were made, the facts and conditions which affect the probative value, and the value itself.
The exception of the defendant enables us to review the part of the charge we have been considering. It did in fact call the attention of the trial justice to it and the claimed error. The essential function of an exception *459
is to direct the mind of the trial justice to the point in which it is supposed that he has erred in law so that he may reconsider it and change his ruling if convinced of error. Appellate courts are not diligent in seeking a way to deprive a party of the benefit of an exception pointing out error, where it appears that the trial justice was fully apprised of the nature of the objection. (Stephens v. Ely,
Inasmuch as the admissions of the infant were received, without objection, as competent and relevant in the suit in behalf of the father, we do not consider their admissibility or effect in that action.
The judgments should be reversed and new trials granted, with costs to abide the event.
HISCOCK, Ch. J., CHASE, HOGAN, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Judgments reversed, etc.