*1 & RAILR’D v. O’BRIEN. VICKSBURG MERIDIAN 99

Statement of Facts. been was before the satisfactorily explained discharge The certificate is on conclusive granted. question. As these are the Federal only questions presented, has. one settléd our decision in already Hennequin needs further Clews, v. the mo argument, affirm tion to is granted.

Affirmed. & MERIDIAN RAILROAD v. O’BRIEN. UNITED FOR THE ERROR THE CIRCUIT COURT OE THE STATES TO DISTRICT MISSISSIPPI. SOUTHERN OF Argued 19, 20, 1886.Decided November 1886. April company by passenger inju- against a a recover for an railroad In action train, an to a a statement ries accident written received phj'sician treating injuries, by his while nature and extent of his made them, giving for information others him for company, them, regard is not even admissible physician in which he swears attached to when him, opinion correctly states that in his the con- was written patient to. at the time referred dition of the which a train meets locomotive running at which an happened, minutes after the between ten accident occurred, against the in evidence not admissible accident damages by passenger the train to recover on action by the accident. caused tbe court. is stated in the The case M. whom were Johnson, (with George Mr. Edgar Mr. Eckocvrd Colston plaintiff' brief,), Jloadly N. Railroad,- River 17 cited: v. Hudson Russell error, Y. 131; 17 N. Railroad, v. River 134; Hudson Luby Y.. v. 55 Ill. Morse 503'; Railroad Central Qougar, Michigan 9 Lame v. 450; Bryant, 6 Railroad, Ri/oer Gray, ConneeUcut & Roo7c C. 69 Am. Dec. 282Gv/rl Chicago GraY, Dieirriohv. Gas. 11 Am. & Railroad Railroad, Isla/nd Eng. Opinion Court. Burst Redlroad,

Baltimore c&c. Second Maryland, Y. ontaine Avenioe 72 -N. Railroad Rañl/road, Belief Ind; Sims v. Macon <& Hunter, Western *2 94.; Tuttle, Enos'v.' Conn. Fuller Georgia, Naug- atuch Conn. Baltimore Go. Oity Railway 74. Kemy, Maryland, Mr. William also filed a brief error. Nugent plaintiff Mr.'. Thomas G. for defendants in cited error, Catchings decided the court: Commonwealth McPihe, points 50 Am. Cusb. S: O. Dec. Enos v. 3 Conn. Tuttle, 247.'

Mr. Justice HaelaN delivered- the court. This action E. O’Brien and her hus- brought' by Mary .was J. band, O’Brien, .John recover sustained conse- damages received the wife in quence personal injuries September, .1881, while a and Meridian passenger upon Vicksburg “ Railroad. that the so alleges care- and constructed and lessly, negligently, maintained unskilfully its railroad and track, so cars,.and engine, carelessly, negli- and conducted itself gently, unskilfully management, and control, the car in same,” which Mrs. running was seated O’Brien was thrown from the rail- passenger road track and overturned, she was whereby .seriously injured. There was a Verdict and favor of the judgment $9000 plaintiffs.

.1. At-the trial the offered to read to the plaintiffs jury of a and did read the physician, first, and second, third him,' interrogatories propounded answers thereto. to the first and second Responding interrogatories, he stated, that his attendance among things, Mrs. O’Brien commenced on the 16th of he September, her found extreme and in' a suffering condi- pain very nervous tion,' few before from hours a railroad resulting accident on defendant’s that such was the road; cause of her injuries O’BRIEN.,.

Opinion pi the Court.. statement, her from her answers, own knew from on others who were and from brother-in-law, attending were as The third and answer with her. interrogatory follows:. “ dated November statement, Look accompanying written at date if was and state by you 28th, 1881, it was whom was written, for what bears, statement Does substantially delivered. represent O’Brien’s condition as it when Mrs. correctly appeared you and as it 1881? her, November.26th, first saw continued.up “, to, I have referred Answer: looked the statement wa,s at"the which written Mr. O’Brien’s by myself, request, mentioned, date he was about to take his wife away in New to- here to home was-intended Orleans, to see her, an idea how she was when I was called convey and in what her condition was when she left my charge; I' at the times re- stated her condition my opinion correctly *3 ferred to.” written referred in the

The statement to interrogatory to his an ex- and attached witness, by deposition'as signed and -with forth, It was addressed to sets O’Brien, hibit. the wife, the nature of the received detail, much their her and mental condition. also and effect upon bodily to the of the witness’ embodied an expression opinion prob- of time which her able within she recover might length The before remaining interrog- injuries. plaintiff, reading to to answers, atories offered read this statement jury The these evidence. grotinds: objected, under and in de- oath, not made the witness That was that it consent; or with its fendant’s presence, knowledge evidence, and, therefore, incompetent; wholly hearsay the witness in to event, could be referred only any recollection. The overruled objection to refresh his court de- evidence, statement be read and permitted The was allowed. which thereto, fendant exception taking was then read to the remainder jury. this cannot be sustained upon We are of that ruling authori- The M the evidence. law of any recognized principle Opinion of the Court.

ties are uniform in that a witness is bolding at. liberty examine a memorandum under him, prepared by circum- stances which this one was, for the of purpose refreshing his recollection as to the stated in facts it. assisting But there are cases which declare adjudged that, unless pre- in the pared some discharge or of public some duty, duty out the business arising relations of the witness with others, or in the of his course own regular or with business, concurrence to be knowledge charged, .party for the such memorandum him, cannot, purpose charging under be admitted as an circumstances, instrument of evi- any dence.1 There other cases to the are, however, effect, that,- where the under states, oath,- witness memorandum _ was made him after the transaction to which it presently for the recollection of the relates, perpetuating and that facts, he knows was correct when al- prepared, it he after cannot recall the circumstances so though reading 'as to them alone from state memory, paper may received which the as the best evidence of case admits.2 us case does to enter an exam- present require ination of the numerous authorities upon "'generalsubject;" it does not but that at the time the for, here, witness appear testified without even had, his written state- looking ment, clear, distinct recollection essential fact stated every If he it. had 'such there recollection, neces- present ' whatever for sity reading paper jury. Applying, rule then, the casé the most liberal announced any which.the allowed authorities, were ruling by plaintiffs read written statement as.evidence, the physician’s jury itself, recited, facts therein was erroneous. '.of *4 1 Fitzg Wike, Lightner 203; Calvert 4 & R. v. Note the Court. v. S. Barker, erald, Cases, 388; 305; Redden 5 Lawrence Litt. v. Wend. Sel. 265, 267-8; v. Spruance, 4 Harrington Thompson, Field (Del.), v. 119 Mass. 2 134, v. Hudson Y. River the Court. 17 N. Russell Note 465; Guy Mead, Oswego Railroad, 140; Merrill v. Ithaca & 22 16 v. N. Y. Fletcher, 282; Haven v. S. C. 30 Am. Dec. Kelsea v. N. H. Wend. Rawle, Wendell, Sturdevant, 636, 640; Minis State 11 H.N. Ala. 33 4. 331, McCord, 2 Nott & v. O’BRIEN. 103' . Opinion of tlie Court. that in behalf of the claimed, is, however,

It plaintiffs, testified, to other answers physician his interrogatories to the material facts embodied certificate, from apart could-not therefore, that, jury reading it, that rea- and, of the defendant, rights have prejudiced of reversal. be a should son, ground that the defendant was not unable injuriously We are say certificate evi- of the the reading physician’s affected by to determine what is not given easy weight dence. to be awarded In damages jury. estimating received, of the extent view character ..and can know, that the court may-Lave jury, aught ' its statements. The admitting controlled by practice largely witnesses, the unsworn statements in evidence -prepared, and without of one at the trial, party, advance request not be should encouraged party, knowledge of evidence. the established rules further departures for an error not disturb a this court will While judgment the substantial did not party injury operate a rever it is committed, it was whom well-settled that the doubt, unless it' be directed beyond sal will appears, have, of did not and could not error prejudiced complained Wall. 630, v. Shoemaker, Smiths party. rights 104 U. S. v. Nat. Bank, 5 Wall. Moores Cray, Deery S. U. Gilman 625, 630; Higby, as a one Roach trial introduced 2. At the below, plaintiffs was asked whether who, examination, witness, during a conversation did after the' accident, have not, shortly time, at the of defendant’s having charge train was about the at which rate of speed at the time. the defendant objected, To that moving question but its was overruled, and the witness objfi&tiqn permitted answer. The witness had examina- stated previously of the track tion after the found a accident, he cross-tie cross-ties under the in a His broken rail condition. decayed to the above answer was“ Between ten question I had such a conversation minutes after accident occurred,

Opinion of Court. the Herbert, the Morgan engineer having loco- charge motive attached to the train at time of the the accident, he me that train was at told the. rate of moving eighteen miles an The defendant renewed its hour.” to this objection motion to exclude it from the testimony by This jury. motion denied, taken. As exception bearing upon here raised it be stated under point may evi- dence, became from the issue as to apart material: — condition of the track —to at whether, inquire, time of at occurred on the (which line where the place in rails were, to some of the track according mate- proof, the train was run at a rially defective,) being speed exceeding (cid:127) fifteen miles an hour. In this view, the declaration of the have had a decisive influence result of may . the trial. There be no as to the rules dispute general can governing of the déclarations of an to affect admissibility agent The acts of' an within the

principal. agent, au- scope to him, are deemed the acts of the thority delegated principal. Whatever does the lawful exercise he of that is authority be without imputable principal, may proven calling as a witness. So, the relation agent consequence between him and the statement or principal, is, circumstances, under some nature of regarded origi- nal “the evidence, ultimate fact to be “being,” says Phillips, not an admission of some other fact.” 1 Phil. proved, Ev. n “But it must be remembered,” “that says Greenleaf, the, the admission of cannot be assimilated to the agent always admission own admission, when- principal. party’s ever ma(le, him; but may given or declaration of his binds him admission only when agent in' the continuance of the to a during agency regard It is transaction then et dwn because opus. depending, fervet act and is admissible it'is a verbal the res gestee it is not to call all; and, therefore, agent necessary evidence, but did it; wherever what he is admissible prove while it is what he said about the act there competent prove if.” 113. This court had occasion Greenleaf, doing § VICKSBURG- v. O’BRIEN. '105

Opinion the Court. Packet Co.v. Wall. 540, consider this Clough, question. to the rule as stated Mr. Justice in his Referring Story “ Treatise where the acts of the Agency agent § *6 the there his will bind principal, declarations, representations, the and admissions will also bind respecting subject-matter him, tilne, made at the saone constituting theres part gestee,” if the of Mr. Justice said: court, Strong, “A close at speaking by tention to this Avhichis of rule, universal will solve acceptance, almost But an act done an cannot every difficulty. agent declarations, varied, be or either his qualified, explained, which amount to no more than a mere narrative of oc a past or an currence, isolated conversation or an isolated held, act at a later done, The reason is that the period. agent do the act is not authorized to narrate what he had done, ho had done how Ms it, declaration is no of the res part gesteeP

We are of that the declaration of the Her- engineer the Roach bert to witness rvas not the de- competent against of fendant the rate of at which proving speed train was at the time of the accident. It is true moving in view of the his engineer’s experience position, statements under as a in oath, matter, to that witness, respect if would have influence with the credited, jury. Although the train in was, of some his control, degree, subject still his in that did not with it au- authority, respect, carry to make declarations or. admissions at a thority subsequent to the in as manner or at time, which, on any particular trip, in his he had his route, any designated point duty. performed His a declaration, after accident had become completed. not of was fact, duties performing engineer, at the train, moment the was was injured, plaintiff run at the rate of miles an was not ex- hour, being eighteen of in It which he was then did planatory anything engaged. not the act from wMch in accompany question in oc- arose. its narration of was, essence, mere past not a an assertion or the res currence, part gestee simply— a matter conversation, the' course of representation, not then which his authority pending, respect TERM, 1886.

106' Opinion of the Court.' 1 It is had been exerted. not to be deemed fully part engineer because of the brief res gestee,simply period intervening and the the accident the declaration. between making that the occurrence ended when the fact remains had declara- and the made, tion in the question that could affect act it. If doing anything possibly had next made the been after the accident,’it day that, it be claimed would admissible scarcely And circumstance that it was company. yet — ap ten and minutes made between appreciable period — cannot, after the make of time upon principle, rule. If to the case view contrary exception general follow, it would that the declarations maintained, 'should if would have tbe favorable engineer, company, without in its behalf as res admissible gestee, calling — find him as a witness will support proposition cases have far of evidence. The the law enough gone *7 admission declarations of evidence subsequent, agents These views sustained their áre fully by principals. courts the States.1 adjudications highest notice taken Ve deem exceptions unnecessary of the court the action below.. court, last term of this was decided at the

This case in the order of reversal Woods- concurred Justice herein stated. grounds

For the errors indicated the is judgment and the cause rema/nded a new a/nd Reversed, trial, for for this, consistent'with opinion. proceedings further 1 Railroad, Luby 131; River -Penn v. Hudson by 17 N. Y. tbe Court. Note s Brooks, 339, v. ylvania Baltimore &c. 343; St. Railroad v. 57 Penn. Dietrick 245; Bryant, Gray, Railroad, Maryland, 355; S. C. Am. 69 Lane 347, v. 9 58 Riddle, 534; Virginia 282; Chicago, Burlington &c. Railroad & v. Ill. 60 Dec. Chicago 328, Sayers, v. & N. W. Railroad Railroad 26 Gratt. Tennessee Coleman, 440, Fillmore, Michigan Mich. Central Railroad v. 28 Ill. 57 v. Ashcraft, 15, 30; Montgomery & Railroad v. Ala. Mobile 48 Bellefontaine Railroad, Hunter, Railway J. 335, Adams v. & S. Hannibal 33 Ind. note; Missouri, 553, 556; Kansas C. Am. & Eng. S. Railroad 416 Cas. Burks, Pointer, Kansas, 620, 630; Roberts Litt. & Railroad Pacific & Baltimore Ohio 411; S. C. 12 Am. Dec. Hawker (Ky.) Cas. Select Taylor, Ed., Ev., Eng. Va. also 7th § 15 West 636. See v. O’BRIEN. 107 Blatchford, Held, Waité,Miller, - Opinion: JJ. Dissenting whom concurred Mu. Field, Justice, Chief Justice Mi?,- - Biwtcheoed, and Me. Justice dissenting. Millbe, Justice- I am not able to assent to tbe my give judgment, court in this case.

The statement as to -the condition' by physician the admission of which held have been injured party, is. his -correct. have been error, proved material fact also which it contained was established Every It would not be accordance independent testimony.. usual action of inmen, ivith the- concerns of life, ordinary reject evidence, written statement thus incompetent as to the condition of a physician under his patient him to true in charge, subsequently proved by. all its details. should seem, which' And.it Avouldact without hesitation one common affairs every not to life, be excluded from ought consideration, except reasons clear established con- policy, rules to the long when those affairs are into trary, before brought litigation courts.

If the recollection of the condition of the had patient passed mind from the .of the and he could testi- still have physician, fied that the statement made him when the patient under his it Would true, have been charge admissible.. is, difficult, to find therefore, reason any just it, excluding the fact of its truth, corroboration physician also testified facts therein stated.

The admission of the declaration of the as to 'the engineer, rate of the time of the accident, inAvas, admissible as my judgment, res The rails gestes. cross-ties of the road were in a bad condition. Some of *8 the rails'had been used for over some forty years; of the .and cross-tieswere and it decayed, that the appears, accident Avas a caused cross-tie and by a broken decayed rail.

As the declaration was made ten between and minutes after the we conclude that .it made in- may was well of the wrecked sight and in train, presence injured whilst surrounded excited parties, The by passengers. M- O CO Field, Blatcliford, Opinion: Waite, C.J.,

Dissenting JJ. Miller^ the could was tbe from whom only engineer person learned of the train- at the time; have of the exact him would have been information on obliged apply ' that that his seem, therefore, declaration, point. would that of its or should have The servant, been received. agent doctrine has relaxed the declarations, modern ancient rule, admissible as to be of the res be con- must part strictly gestes, with the main evi- transaction. It now allows temporaneous under them, dence of to have been made' they appear immediate influence are the transaction, principal so connected with it it. as-to-characterize explain of

The case Hanover Railroad Company Coyle, St. is in There it that a 396, 402, Penn. point. appeared ped 'was struck dler’s locomotive wagon by peddler and the as to the injured; question admissibility declaration of the that the train was behind time, engineer show carelessness and The Court of Supreme negligence. held it “We cannot admissible. said the Pennsylvania say,” “ that declaration of the court, of part the res It was made at the in view of the time, goods gestee. strewn the road of the boxes, along breaking up seems to have out of after grown immediately directly of fact. happening snegligence complained that of the himself, we cannot that his being engineer, say at the and in declarations, time, view of spot, conduct, effects are not evidence the com as a transaction itself.” pany' very What time between the event may happening elapse to which and the time of the jnade, the declaration respect declaration, and must admissible, the-declaration yet depend An character of itself. accident the transaction hap- to-a car is would train, wrecked, Which a pening 'railway deal lead of excitement naturally a.great passen- among ' train, on and the of the accident gers character and cause would be the time considerable- subject explanation connected with the train. The admis- by persons afterwards. of a sibility declaration-, connection with fact, as principal Greenleaf, must be determined stated *9 & MERIDIAN RAÍLR’D (cid:127)«. O’BRIEN. YIGKSBURG. Opinion: Dissenting Waite,, C.J., Miller, Field, Blatchford, JJ. to the of its judge, relation to according degree fact, in the exercise of a sound discretion it ; being extremely if not -difficult, this impossible, class of cases bring within, of a the limits' more particular description. principal of attention are, adds, points whether declaration was with the main fact, and so connected with contemporaneous as to illustrate its character. of this

But, consideration, there is independently another an- swer to the taken "tothe' objection declara- admissibility was, tion of the immaterial in view of the engineer. any case. The railroad is to its engagement carry , (cid:127); and, a defect safely any passengers injury arising its the rails or which could road, ties, have guarded - the exercise of it is care, hable. Its

against by proper liability does not of the train, whether it was depend upon speed one mile or an miles' hour. as a carrier of eighteen Though it is like a carrier of insurer not, passengers property, all accidents those the act of caused God or the except pub- ' n lic it is with the enemy, utmost skill in the charged oare and of its performance ;(cid:127) ut- duty not merely implies most attention in but respect cars, movement of the also to the condition of the road, and of and all other rails, its ties, essential to appliances of the train and safety passengers. For all' which the does through negligence, passenger contribute own-acts, is hable.. So matters not . what the of the. train the case at nor bar, what

was the declaration of the in that respect.

I am authorized to state that the Chief Justice Justice, and Mr. Miller, Justice Blatchford concur this dissent.