Daily v. New York & New Haven Railroad

Hinman, O. J. Two questions are raised by the plaintiff upon this record. First, that the court erred in rejecting [358] certain declarations of the deceased made after he received the injury for which the action is brought, and while he was under a sense of impending dissolution ; and secondly, that the court erred in permitting the defendants to prove gross negligence in the deceased which materially contributed to the injury. The superior court was most clearly correct upon both of these questions. Dying declarations are only admissible in criminal cases, where the death of the deceased is the subject of the charge, and the circumstances of the death the subject-matter of the declaration. There are very few cases any where in which this rule has been departed from, and we have always acted upon the well settled law of England on the subject. I he King v. Mead, 2 Barn. & Cress., 605; Wilson v. Boerem, 15 Johns., 286; The King v. Lloyd, 4 Car. & P., 233. In regard to proof that the negligence of the deceased contributed to produce his injury, the case is not. distinguishable in principle from that of Havens v. The Hartford and New Haven R. R. Co., 28 Conn., 69, in which this subject underwent a very thorough examination. That case was like this, a hearing in damages after the defendants’ demurrer had been overruled, and proof was introduced to show that the wrongful acts of the plaintiff himself contributed to his injury. We do not advise a new trial. In this opinion the other judges concurred.