219 F. 517 | 3rd Cir. | 1914
It is averred in the libel filed in this case that the libelant was the owner of a dredge, engaged under contract with the United States in deepening and widening the channel of the Passaic river in the state of New Jersey, and that upon six dates therein named, while the libelant’s dredge was anchored in places of safety by means of spuds or long timbers, the steamship J. S. Warden passed the dredge, producing swells which caused the anchored dredge to surge at her spuds and to break them, for cause whereof negligence is charged in the navigation of the steamship: (1) In not keeping a sufficient distance from the dredge; (2) in passing close to the dredge at a high and dangerous rate of speed; and (3) in not slowing down or heeding warnings given from the dredge — and damages are sought for the cost of installing new spuds and the loss of time consequent thereupon.
Damages were claimed ,to have been sustained on six Separate occasions, for each of which a separate claim was made. The first, second, and sixth claims were dismissed. This appeal relates only to the third, fourth, and fifth claims, upon which the court found for the libelant. The errors assigned, when classified, extend, first, to the sufficiency of the evidence upon which the court made its finding; and, second, to the admissibility of certain of the testimony. A condensed statement ' of the testimony will be sufficient to dispose of the first ground of error.
In proof of the‘negligence charged to the steamship J. S. Warden, the libelant produced testimony as follows: At the points- of the .river at which the spuds were broken, the channel was from 200 to 300
Opposed to this testimony, evidence for the steamship was produced, tending to prove that she passed the dredge at a rate of speed as low as 5 or 6 miles an hour; that upon occasions she slowed down, maintaining only steerageway; and that there was another steamship upon the river, namely, the Majestic, which was a faster boat, and which, upon its daily trips down the river, preceded the steamship Warden in passing the dredge only by a few minutes. It was maintained that the injury to the dredge might as readily have been occasioned by the swells from the Majestic as by those from the Warden, and that upon the libelant was the burden of affirmatively proving that the damage was caused by the swells from the Warden.
Without reviewing the testimony or reconciling its conflict in this opinion, it is sufficient to say that upon the testimony offered a.nd received we are satisfied that the libelant sustained the burden of proving the negligence of the steamship J. S. Warden, and that in its finding the court below committed no error.
The remaining question is whether the court committed error in admitting certain testimony which must have had an important bearing upon the conclusions reached.
Upon a rehearing the inspector produced his daily reports. Before testifying as to their contents, he stated that he had no present recollection of the dates upon which occurred the facts concerning which he was ready to testify; that the reports were made by him in the usual and regular course of his employment, and consisted of original entries made upon the dates there indicated; that such entries were made by him in his own handwriting, and were in truth correct, but that by reading the dates his memory as to them was neither refreshed nor his recollection restored.
. The entries, however, embraced more than dates. They included a recital of what happened upon the dates, such as: “Starboard spud broken by steamer Warden, replaced at 11:40 a. m.” The reports were neither offered nor admitted in evidence, but the witness was allowed to read the entries appearing on them. As they did not refresh his memory, the entries really constituted a record of his past recollection, to the truth of which he swore, and as such they were admitted in evidence.
It was not contended that an entry, “Starboard spud broken by steamer Warden,” was admitted to prove the fact that the Warden broke the spud, for upon that fact, deduced from the conduct of the steamer and the behavior of the dredge, the witness was able to testify from his present recollection'. But he was unable to testify from his recollection as to the date of the occurrence. The date in the reports, which he swore was correct, connected the time of the occurrence with the occurrence itself. But he could not testify to the date, either from recollection or from a memory refreshed, though at one time the date was within his mind. The entry of the date, therefore, must have been admitted in evidence, though not so stated by the court, as a record of a past recollection, to supplement the witness’ present recollection of the facts, and thus together complete a communication of the witness’ whole original impression of the facts concerning which he was called upon to testify.
The captain’s situation was somewhat different. Tike the inspector, the captain could testify to facts unaided, and could not testify to dates; but, unlike the inspector, he could testify to dates from his present recollection when refreshed by reading the cards containing his daily reports to his employer, which the inspector had made upon his information and under his supervision and inspection.
We think the testimony of the inspector was properly admitted under the rule recognized by this court as applied to the facts of the case
Entries such as made by a bank clerk, and as in this instance by the inspector of engineering, of the great number of transactions which in the regular course of their employment they were required to make in the books of their employers, the subject-matter of which under human limitations it would be impossible for them to remember, even with the aid of the recorded entries, constitute frequently the very best evidence of a fact that exists. The reasons for the rule and its development appear in the cases. Reyburn v. Queen City Savings Bank & Trust Co., 171 Fed. 609, 96 C. C. A. 373; West Branch Lumbermen's Exchange v. Insurance Co., 183 Pa. 366, 38 Atl. 1081; Remington Machine Co. v. Wilmington Candy Co., 6 Pennewill (Del.) 288, 66 Atl. 465; Owens v. State, 67 Md. 307, 10 Atl. 210, 302; Insurance Co. v. Weide, 14 Wall. 379, 20 L. Ed. 894; Acklen’s Executors v. Hickman, 63 Ala. 498, 35 Am. Rep. 54; Bank v. Zorn, 14 S. C. 444, 37 Am. Rep. 733; Davis v. Field, 56 Vt. 426; State v. Brady, 100 Iowa, 191, 69 N. W. 290, 36 L. R. A. 693, 62 Am. St. Rep. 560; Cunningham v. Ry. Co., 63 Hun, 439, 18 N. Y. Supp. 600; Shove v. Wiley, 18 Pick. (Mass.) 558; Manheimer v. Stern (Com. Pl.) 18 N. Y. Supp. 366; Haven v. Wendell, 11 N. H. 112; Howard v. McDonough, 77 N. Y. 592; Starkie on Evidence, 176; 1 Greenleaf on Evidence, § 439a; 1 Wigmore on Evidence, §§ 478, 725, 734, 737, 738.
We are of opinion that the court committed no error in permitting the inspector to read into evidence, for the purpose indicated, the entries made by him under the circumstances narrated.
The decree is affirmed, with costs.