Fawcett v. Bigley

The opinion of the court was delivered, January 4th 1869, by Agnew, J. The offers to prove the declaration of John West, made after the accident, that it was caused by the omission of Bigley to furnish proper lines and assistance to secure the boats, was properly rejected. Clearly they were but the statements by West of a past transaction, and not declarations made in the course of Bigley’s business, contemporaneous with, and qualifying or explaining the acts in which he was engaged as the agent of Bigley. They came clearly within the rule that the narrative of an agent of a past occurrence cannot be received as proof against the principal of the existence of such occurrence: 1 Greenleaf’s Ev. § 110; Patton v. Minesinger, 1 Casey 393; Hannay v. Stewart, 6 Watts 487. If West knew the facts he could be called to prove them. But after the accident he stood in antagonism to his employer. The boats were in his charge, and if they were lost by his negligence he might be held responsible by Bigley for the loss he had caused. It was now his interest to lay the fault at Bigley’s door for not furnishing proper lines and help. The error assigned to the rejection of the alleged rebutting evidence is not sustained. The plaintiff in error has furnished neither the declaration showing the nature of the alleged negligence, nor the evidence given by him under it. .We are not in a situation to judge whether the evidence offered as rebutting was really so, or was only cumulative to that given in chief. We must therefore take the statement of the judge in the bill of exception as true, that the plaintiff had gone fully into this part of his case in chief, and had called and examined this witness twice, as wrnll as many others, and that the evidence offered was not rebutting. Judgment affirmed.