122 Ky. 256 | Ky. Ct. App. | 1906
OPINION op the CbuRT' by
— Reversing’.
Appellee alleges that while walking across appellant’s railroad tracks in its yard at Madisonville, at a point between Broadway and Sugg streets-, where the. public had been permitted by the, railroad company to so nse its tracks as a passway for more than 20 years-, he was injured by being run against by a car 'detached from the engine. The accident occurred in the nighttime. Appellee claims, or rather his testimony conduces to show, that appellant was making a running switch in the nighttime, and turned the car loose without light or other signal, so that he was unaware of its approach till it ran upon him. The decided weight of the evidence is against his theory of the cause of the injury. But upon his testimony (and he was the only witness on either side who claims to have known o-f the injury at the time it occurred) there was a case to he submitted to the jury, provided appellant was required to take notice' of appellee’s presence at the place and time of his
A further statement of the facts is necessary to an application of certain evidence offered, and admitted
Appellant offered-to prove by its. train dispatcher that he kept an accurate record of the movements of all trains on that division of appellant’s road; that it was his duty to do so; that this record was made up at the time from his own orders, upon which all trains on that division moved, and from telegraphic reports transmitted to him from the stations along the line as each train arrived and departed, from which he at the time made an entry on his record; that the record was made accurately at the time, and was true. He produced his record, called a “train sheet,” or telegraphic register of trains. This sheet purported to show the time of the arrival and departure of every train passing over that road on that day, at Madison-ville, as well as all other telegraphic stations on that division. Appellant offered to introduce it as evidence on its behalf on this trial, but upon objection of appellee it was rejected. The witness was permitted to state what he knew personally about it, based upon his personal knowledge and recollection. But he was compelled to state and did state that he had little or no personal knowledge on the point, as he was stationed at Earlington, the end of the
Books of original entry, called shopkeepers or parties’ books, have for centuries been admitted as evidence in favor of the party keeping them. Numerous limitations upon the rule are noted. The rule1 itself has been subjected to not a few changes in judicial application, and to. many more by legislative action. While very narrow originally, the tendency hjas; been upon the whole to broaden its application, though it is believed that.the first principles upon wtfioh it was founded are to be clearly recognized in every change that it has undergone. These are, in fine, that, as the courts require the production of the best evidence the nature of the case admits of, necessity and circumstantial guaranty of trustworthiness of such entries may render them, not only the best, but the only reliable, evidence practicable to be obtained to establish the disputed fact. It is scarcely within the scope of the questions here involved, even if it were necessary at this day, to trace the origin of the rule or to follow its course and deviations. Of this rule of the common law, as interpreted by English and American courts, it can be truly said, as of many others, proving the wisdom and elasticity of the systems, that it adapts itself logically to conditions undreamed of in its origin. Commerce has grown enormously in magnitude and variety since-
To the objection that his record is not his own personal knowledge, the answer is that the intelligence transmitted to him by his subordinates is all of the same kind and grade as that recorded in his entries. Its trustworthiness is supported by the same considerations. It is at least as reliable as sales-inen’s, draymen’s, porters’, or wharfingers’ information conveyed to a bookkeeper, who makes the original entries thereof, all of which is now nearly everywhere allowed'to be proven by the introduction of the book entries so made, as evidence of the facts shown by the entries. Wigmore on Evidence, section 1530. The entrant discharges a duty which he has assumed only in the keeping of an accurate record of his entries. He makes them contemporaneously with the act which they represent. They are made in the regular course of transactions, which, to be utilized in business, must from greatest necessity be precise and true. They are made in the habit and system of keeping such a record with regularity. Every consideration by which it is possible to establish the existence of a past event, by testing the accuracy of the evidence of it, is satisfied by such a record. It is less apt to be mistaken than the person who made it would be if testifying to it from memory subsequently. That it is made up of details furnished by different persons widely apart, and all acting under
In Louisville Bridge Co. v. L. & N. R. R. Co., 116 Ky., 258; 25 Ky. Law Rep., 405; 75 S. W., 285, the railroad company’s books, showing the aggregate of waybills constituting the volume of traffic over a toll bridge covering a considerable period, were admitted to prove the volume or value of such aggregate, without calling the various clerks who handled and had personal knowledge of the trmsactions. Of this kind of evidence the court said: “Objection is made to the competency of these papers on the idea that they were simply loose memoranda. This cannot be maintained. They were the original and best evidence of the transaction, and were the record kept by the railroad company to show its transactions. In cases of this
Witnesses for appellee testified that be was, before his injury, a man of industri: s habits, sober and moral. Objection to. the testimony was overruled. The court told the jury that this evidence was admitted for the sole purpose of showing the value, if it tended to show it, of appellee’s earning capacity, and -that they should not consider it for any other purpose. The precise question presented has not heretofore been passed upon by tills court. Nor is it all free from difficulty. In favor of its reception it may be said that it helps to show the value of the
On the other hand, it is said, when the injury does not result in death, that compensation for the thing injured is alone contemplated; that habits of industry and sobriety are temperamental — qualities of the mind- — and are in1 no sense injured or lessened by the loss of an arm; that one’s. inclination to sobriety and industry, being unimpaired by the-loss of an arm, will find equivalent employment through other means. Again, it is said the admission of such evidence is more apt to excite commiseration and sympathy for a worthy, unfortunate person, which will work upon the compassion of the jury to award damages not purely compensatory. Pennsylvania Ry. Co. v. Books, 57 Pa., 339; 98 Am. Dec., 229. It is equally as true that the presence of a maimed, disfigured - litigant, who shows that his condition has been produced by the negligent act of a superior, is apt, at times-, to produce the same effect. The result must be looked to to see whether the verdict is beyond reasonable compensation, when, if it is, the remedy lies in the corrective power of the court Still, it is the province of the jury, and the right of the plaintiff, to have his ease tried on its merits by the jury, notwithstanding possible danger of abuse of the right.' A further objection is that the evidence is said to support the good character of the plaintiff as a witness, which is not allowed until Ms reputation has been attacked 'by the defendant. In the case at bar, the court admonished the jury as to the sole purpose for which the testimony was admitted excluding so much a» was possible, the element of supporting evidence.
It is argued, however, that it would inevitably
The court is further of opinion that a new trial should have been granted in this case because the verdict was palpably against the weight of the evidence.
Judgment reversed, and cause remanded, with directions to award a new trial under proceedings not inconsistent herewith.