аfter stating the facts: In the trial of this cause it became material to show at what time the defendant’s wrecking train No. 371 reached Hamlet, the station on defendant’s road, at which the cotton was burned. Defendant introduced one C. Lane, who testified that he was employed by the defendant road as train dispatcher on 19 October, 1902; that it was his duty to keep a record of the arrival and departure of all trains at аll telegraph stations; that the record was made and kept on the train sheet; at the *44 time trains arrived at and left stations; the operator at such stations notified the dispatcher, who immediately recorded on the sheet the time as it was reported to him; that such sheet constituted a record of the arrival and departure of all trains. That he governed the movements of trains by such record; that on the 19th of Oсtober 1902, the official report was sent him and that he immediately recorded thereon the time of the arrival of the extra train, which was the wrecking train at ITamlet of that date, and that he had the record before him. The defendant then offered the record in evidence for the purpose of showing the time of the arrival of the wrecking train at Hamlet, which witness McDonald testified was taken charge of by shifting engine 371 оn its arrival. Objection. The court ruled that the witness could refresh his recollection by an inspection of the record enabling him to speak touching his own acts at the time with regard to the matter under inquiry, but at that time ruled out the declaration which any other agent of the company made to him at the time by wire or otherwise. The witness stated that he could not state of his own personal knowledge the time at which the wrecking train arrived at Hamlet. The court admitted the record in evidence, showing the entries made by witness of statements made to him by wire from the agent of the defendant at Hamlet as to arrival and departure of said wrecking train, to which plaintiff duly excepted. Defendant also introduced one J. W. Hunt, who testified that he was employed by defendant company as conductor and that as such he ran wrecking train on October 19, 1902 from Raleigh to Hamlet; that it arrived at Hamlet at 12:37. Witness is then shown a book which he identifies as a register showing the time of arrival, which he says is kept at Hamlet; that it was his duty to register the arrival of the train and that he did register it on that day. .He identifies the entry in his own hand writing. “Extra train. Time arrival, 12:37 p. m.” Signed by him *45 and also by engineman. This last record was offered by defendant in corroboration of witness Hunt and tbe court admitted it for tbat purpose, so instructing tbе jury.
It is contended by tbe plaintiffs tbat tbe “train sheets” are not admissible because, while containing entries, made by tbe train dispatcher in tbe usual course of business, be bad no personal knowledge of tbe truth of tbe statements recorded; tbat be simply recorded information derived from tbe operator at Hamlet, a hundred miles or more distant from Raleigh. This, they say, is but hearsay.. Tbe defendant, on tbe other band, contends tbat tbe entry made by tbe train dispatcher, although based upon information derived from tbe operator, by reason of tbe circumstances under and tbe manner in which tbe information was communicated, is surrounded by all possible safeguards against error, uncertainty or falsehood — and therefore comes within tbe exception to tbe general rule excluding hearsay evidence. Tbe question is of first impression in- this State. We have given it careful and anxious consideration, desiring to make no departure from tbe well settled principles of tbe law of evidence, or tbe decisions of this Court, at tbe same time recognizing, and keeping in view, the duty of tbe Court to make diligent effort to find in those general principles such safe and reasonable adaptibility tbat in tbe changing conditions of social, commercial and industrial life there may be no wide divergence in the decisions from the standards by which men are guided and controlled in important, practical affairs. ' Tbe law of evidence, based upon certain more or less well defined general rules, evolved from experience, has been molded by judicial decision and legislative enactment into a system having for its end and purpose, and believed to be adapted to, tbe discovery of truth in judicial proceedings. Mr. Greenleaf says, “In tbe ordinary affairs of life we do not require demonstrative evidence, because it is not consistent with the nature of the subject, and to insist upon *46 it would be unreasonable and absurd. Tbe most that can be affirmed of such things is that there is no reasonable doubt concerning them.” Prof. Thayer says, “The law of evidence is the creature of experience rather than logic.”
“The distinctions of the law are founded on experience not on logic. It therefore does not make the dealings of men dependent upon mathematical certainty.” Holmes Com. Law 156. “It is no doubt true that to a very great extent the law of procedure, as well as the primary law, is founded, not on the' experience of isolated persons, but the general experience of men engaged in the business and vocation of life.” 1 Elliott, Sec. 3.
The Courts early adojited and have at all times rigidly adhered.to the rule that witnesses, in testifying, must be confined to that which is within their personal knowledge and that which is but hearsay imist be excluded. 1 Greenleaf (16 Ed.) 98; 1 Elliott on Ev. 215. The wisdom of this general rule, and the reason upon which it is founded are obvious and require no vindication or discussion. The Courts however soon found from experience that unless excеptions were made to the general rule, it would be impossible, in many cases, to establish the truth; that legal rights would be sacrificed and wrongs be without remedy. Judge Elliott says, “As already stated, it was conceived originally that witnesses should always be present, but this was found impracticable. In consequence the general rule has become honey-combed with so-called exceptions. The grounds of making these exceрtions differ as do the different exceptions. The ground as to some is that the hearsay is rendered necessary by the difficulty of other proof; as to others, the ground is that owing to the circumstances under which certain declarations were made, some guarantee of their reliability is furnished other than the mere fact of their having been made, that is, the circumstances add peculiar weight to this evidence and dispеnse with the ordinary tests of credi
*47
bility.” 1 Elliott, 320. The general and well recognized exceptions are stated in Elliott on Ev. 331; 1 Greenleaf 114. Prof. Wigmore says that the reasons upon wbicli the exceptions are based are “Circumstantial guarantee-of trustworthiness and necessity.” 11 Wigmore Ev. Sec. 1420. The principle with its limitations is well stated by
Jessell, M. R.
in
Sugden v. St. Leonards
L. R. 1 Pro. Div. (1875-6) 154, (241.) He says: “Now I take it the principle which underlies all these exceptions is the same. In the first plаce the case must be one in which it is difficult to obtain other evidence, for no doubt the ground for admitting the exception was that very difficulty. In the next place the dec-larant must be disinterested, that is, disinterested in the sense that the declaration was not made in favor of bis interest. And thirdly the declaration must be made before dispute or litigation, so that it was made without bias on account of the existence of a disputе or litigation which the declarant might be disposed to favor. Lastly, and this appears to me one of the strongest reasons for admitting it, the declarant must have bad peculiar means of knowledge, not possessed in ordinary cases.” Among the exceptions to the general rule we find “Entries and declarations of third parties made in the regular course of duties or business.” Such entries are of two kinds. 1st. Those made by the entrant respecting a transaction, conducted by, or matter known to him personally in which no other person has taken any part. 2nd. Those made by the entrant upon information communicated to him by some other person acting in the line of bis duty to make report to him. The entries made by the train dispatcher fall within this class. It is undoubtedly the general rule that if the entrant and the person making the report upon which the entry is mаde are both living and available, they should be produced to testify to the truth of the subject matter of the entry. That if one be living and available and the other dead or unavailable,
*48
that is, insane or beyond the process of the Court, the entry may be introduced upon the testimony, as to its authenticity of the living, available person. Can the entry be admitted when, as in the case before us, the entrant is living and the person upon whose report the entry is made is not produced, nor bis absence accounted for ? Mr. Greenleaf referring to the decisions of the Courts in respect to the admissibility of this class says: “Other Courts * * * admit them (the entries) without accounting for the original observer, on the sound consideration that it is practically impossible in mercantile conditions to trace and procure every one of the many individuals who repоrted the transactions.” 1 Greenleaf 120 (a). He says that other Courts refuse to permit such entries to be introduced. Judge Elliott, quoting the language of Mr. Greenleaf, says: “We are inclined also to agree, in the main, with the writer quoted in the last preceding section, but not entirely without qualification. It may be — although as shown by the authorities there cited, there is sharp conflict among the authorities — that such entries are admissible, in a рroper case, when duly authenticated, on proof that the informant knew the facts or properly reported them, even though be is not put upon the stand, especially if be is unavailable, and there are authorities looking very decidedly in that direction in addition to those referred to in the preceding section.” Citing
Meyor v.
Brown,
Tbe record made by one appointed for that purpose by the signal service bureau of the state of the weather held admissible.
Knott v. R.
R.,
We find no error in the refusal of the Court below to. give thе third special instruction, and think that the fourth instruction given presented to the jury the law governing the defendant’s liability, if they found that the defendant company burned the cotton. We have examined the entire record with care. His Honor’s charge is clear, full and correct. It would seem that the real question, around which *54 the controversy was fought out and decided, was whether the cotton was set fire to and burned by the defendant’s engine. The judgment must be affirmed.
Affirmed.