73 N.J.L. 639 | N.J. | 1906
The opinion of the court was delivered by
There were four assignments of -causes of error on the part of the plaintiff in error.
The first error assigned is because the court overruled the question of plaintiff’s counsel to Peter Van Sciver, as follows: “Didn’t you go into the hotel where he was and say, 'Mortimer, don’t blame me; it was soft wood.’ Do you remember saying anything to him about the character of the wood ?”
The ground upon which it was insisted that this testimony should be admitted was that- it constituted a part of the res gestee. An examination of the testimony discloses that the plaintiff, after the accident, was picked up and carried to the sidewalk, where he was left, as he says, ten or fifteen minutes, and then taken to some hotel. It must, then, have been after this that the statement sought to have been obtained from the witness was made. The trial judge tersely and properly ruled that “the res gestee was over long before that.” If, as stated in Blackman v. West Jersey and Seashore Railroad Co.. 39 Vroom (on p. 2), the words “had been exclamatory and coincident with the happening of the accident, tlicv would undoubtedly have been illustrative of its character, and proof of them would have been admissible.” If the witness did go to the hotel, after the removal of the plaintiff thereto, and make the statement attributed to him in the question, it can only be considered as the narrative of the conditions which may have brought about the accident, and not so connected with it as to make it part of the
The second error assigned is because the court overruled the question of plaintiff’s counsel to the witness Frederick S. Clayton, as follows: “Do you remember Yan Sciver and .Hayes having a conversation as to the quality of the wood?’’
This question was properly overruled by the trial court upon the ground that even if the statement had been made by Van Sciver it could not be evidence against the defendant corporation. The offer was an attempt to make the admissions of an agent, not made in the execution of his agency, binding upon his principal. The rule is too firmly established in this state to admit even of discussion that “only words which are spoken, or acts which are done by an agent in the execution of his agency, are admissible in evidence against the principal.’’ Ashmore v. Pennsylvania Steam Towing Co., 9 Vroom 13; Heubner v. Erie Railroad Co., 40 Id. 327.
The third error assigned is the allowance by the trial judge of the motion to nonsuit.
The insistment on the part of the plaintiff in error is that the testimony showred that the pole broke and as a result the wagon went over, and that it was a question of cause and effect for the jury. An examination of the testimony, however, demonstrates the unsoundness of this proposition. The overturning of the wagon, while making a short turn, was undoubtedly the cause of the accident, for, as stated by the foreman (Mclsaacs), “We were facing down the hill at the time, then we started to move around and I saw the pole break; it broke towards the wagon.’’ There was nothing in the. testimony to show that the wagon went over as a result of the breaking of the pole; but, on the contrary, the driver,
There was no error in the refusal of the court to submit the case to the jury.
The judgment below should be affirmed.
