Stone v. Town of Poland

Macomber, J. The verdict was rendered upon a complaint demanding damages alleged to have been sustained by the plaintiff through the negligence of the commissioner of highways of the town of Poland, by which the plaintiff, on the 22d day of May, 1887, received personal injuries. After passing the bridge over Conewango creek, the horse then driven by the plaintiff, either through fright at the new structure erected near the highway or by accidentally stepping into a hole in the highway, caused the plaintiff to be thrown down an embankment. The main question in the case was whether the commissioner of highways had omitted any duty which he owed to the traveling public in failing to make the place in question safe for travelers. It is quite evident that the verdict could not have been based upon the fact that the defect in the highway had continued so long as to charge the commissioner with negligence in failing to discover its existence. .The negligence of the defendant was established, if at all, by the evidence of three witnesses, who testified, under objection and exception by the defendant’s counsel, that the commissioner said, on the day following the accident, that he supposed the road had been repaired, and that he had ordered a man to make such repairs at different times. The exception to this evidence presents the main ground upon which the appellant’s counsel asks for a reversal of the judgment. Chapter 700 of the Laws of 1881, making towns responsible for injuries, where theretofore the commissioner of highways alone was held liable, has introduced no new rule of evidence. The admissions of a person not a party to the action are, in this class of cases, as in all others, inadmissible, because they are mere declarations of persons not parties to the action, and afford no reliable evidence upon which courts can safely pronounce judgment. It is only when the act or declaration of a person forms part of a transaction, and is a fact in issue, that such act or declaration is competent to be given in evidence, and then only in order to show the purpose or character of the transaction or to explain its meaning. In the case before us, the liability of the defendant depends upon the performance or the non-performance of the duty of a third person, namely, the commissioner of highways. His act, declaration, or omission of duty is competent in an action against the town only when the act, declaration, or omission of duty occurred in the cause of his business in respect of his duties as such highway commissioner. Had he stated to either of these three witnesses, before the time of the accident, that he had required a subordinate to repair the defect in the highway, there would have been presented conclusive evidence of his actual knowledge of the dangerous condition of the highway, and of the necessity o£ repairs. That would be a fact germane to the case; but his unsworn declaration that he had given such directions, made after the accident, is not ■any evidence of such knowledge. The general rule undoubtedly is that the act, declaration, or omission of duty of a-party to a suit, whether given before or after the event, may be given in evidence against him. But, where liability against a town is sought to be established by reason of the negligent omission of the commissioner of highways, the declarations of the latter are not competent evidence when made after the injuries have been received by the plaintiff. As was said in the case of Stephens v. Vroman, 16 N. Y. 383, 384: “The law does not regard, as sufficiently authentic to influence a jury, any statement which is not made under the sanction of an oath; and, in general, it further requires that the witness making the statement should be present at the trial, to the end that he may be examined by the adverse party, [500] and that the jury may draw their own conclusions as to his sincerity and accuracy by his appearance and bearing upon the witnesses’ stand. This rule loes not, however, embrace the admissions of a party to the action; for, upon equally plain principles, anything which a man says against himself may be given in evidence by his adversary, as it is not to be supposed that one will make a statement adverse to his own interests unless it is true.” These declarations were but a narrative of a past transaction, and were not admissible. In the case of Waldele v. Railroad Co., 95 N. Y. 274, the plaintiff’s intestate was struck by an engine while crossing the defendant’s tracks, and received injuries from which he subsequently died. Half an hour after the accident, his declarations made by the sign language, lie being a deaf-mute, were given in evidence, to the effect that there was a long train passing the tracks; that he waited for it to go by, and, after ft had passed, attempted to cross, and was struck by an engine which followed. It was held, after a thorough review of the authorities, that this was but a declaration of a past transaction, and was incompetent; and the judgment, partially based upon such evidence, was reversed. See, also, the cases of People v. Bench, 87 N. Y. 508; Whitaker v. Railway Co., 51 N. Y. 295; People v. Davis, 56 N. Y. 95; Tilson v. Terwilliger, Id. 273. For this reason, the judgment and order appealed from should be reversed, and a new trial granted. A further point is made by counsel for the appellant that evidence of repairs, being made shortly after the accident, was not competent under the decision of the case of Corcoran v. Village of Peekskill, 108 N. Y. 151, 15 N. E. Rep. 309. The last-cited ease holds that evidence, if offered for the purpose of showing that the party charged with negligence must have known before the accident of the dangerous character of the locality, was incompetent; yet, we do not understand that case to lay down any rule which prevents a witness from describing the condition of the place where an accident has happened, even though it does incidentally and argumentatively involve the fact that the party charged with maintaining it has, by making repairs thereon, by so much confessed to his dereliction, provided the evidence is material for some purpose which is legitimate. If we understand the rulings of the learned trial justice aright, he recognized the rule laid down in the ease cited above, and admitted the evidence of the condition of the highway from the witnesses inspecting it after the accident, to show the presence of funds in the hands of the highway commissioner at the time of the accident. For this purpose, the evidence, though perhaps unnecessary, was competent'. Getty v. Town of Hamlin, 8 N. Y. Supp. 190. Judgment and order reversed, and a new trial granted, with costs to abide the event. Dwight, P. J., concurs.