Knowles v. Crampton

Carpenter, J., The plaintiff claimed, and offered evidence in support of her claim, that two or three of her ribs were broken. The physicians, who testified in her behalf, located the ribs. The defendant denied the claim, and further contended that at the place described there were no ribs. To support his claim on this point he offered in evidence a section of a human body. To this evidence the plaintiff objected and the court excluded it. We see no necessity for evidence of this character. It [342] was not in itself evidence, although it might serve to illustrate, and might perhaps assist the jury somewhat in understanding, the expert testimony. But for that purpose it was hardly needed, as that testimony was reasonably intelligible in itself. But if not, the jury could easily have been made to comprehend it by other means. The exhibit being of doubtful utility, and offensive in its nature, we think the court might well exercise its discretion. In matters of discretion the action of the trial court is not subject to review in this court. 2. The second reason of appeal is the rejection by the court of a letter, offered by the defendant, written to him by the attorney of the plaintiff, stating the claim, naming a sum which would be accepted, and requesting a settlement. The letter purports to present a claim of the father of the plaintiff “for the loss of services, nursing and doctor’s bill, etc., necessary for his daughter,” and contains no intimation of a claim in behalf of the daughter for personal injuries. Of course no admission or declaration by the father is admissible against the plaintiff. But the defendant offered to prove that the letter was authorized by the plaintiff, and so was in fact her letter. This too was rejected. The rejection of the letter and the accompanying evidence cannot be wholly vindicated on the ground that it was an offer to compromise an existing controversy. The material part of the letter is as follows:—“ Mr. Henry D. Knowles has put a claim, which he has against you, into my hands for settlement. He claims that while his childreu were peacefully driving home from Sunday-school, last Sunday, your carriage ran into his, throwing the children out, and fracturing one of his daughter's ribs, and otherwise injuring her so badly that she is now under the doctor’s care, and liable to be so for some time to come. He authorizes me to say that, while he does not consider fifty dollars a fair compensation for the loss of service, nursing and doctor’s bill, etc., necessary for his daughter, yet, to avoid [343] any further difficulty, he will be willing to accept that sum as full compensation.” That part of the letter which states the facts is absolute, not conditional. It is not expressly stated to be without prejudice, and nothing in it justifies the inference that it is a concession for the mere purpose of a compromise. That part, aside from the remaining portion, would have been admissible if the defendant had chosen to offer it. But it is otherwise with that part relating to the amount of damages. There is a concession, and it is clearly stated to be for the purpose of effecting a settlement without suit. That is clearly inadmissible. The whole letter was offered in evidence—that part as well as the other. If it was not divisible the objectionable part would seem to exclude the whole. If divisible the defendant should have offered only that part which he was entitled to, as that might have been received and the other excluded. Instead of limiting his offer to the admissible part and stating the purpose for which he offered it, he insisted upon his right to have the whole, not stating the object for which he wanted it; leaving it open to the inference that it was the objectionable part that he wanted, and that solely for the purpose of affecting the amount of damages. The court was not bound to discriminate for him, but properly excluded the whole. 2. The court charged the jury as follows: “ When teams are passing along the public highway in the same direction, the rear team may pass on either side of the advance team, provided there is ample room, and if in attempting to pass damage occurs, without fault on the part of the advance team, the party attempting to pass and causing the damage is liable for the consequences.” The third reason of appeal alleges that this charge was erroneous, first, on the ground that it was not applicable to the case, and second, that it imposed upon the defendant a liability without negligence on his part. The rules which govern attempts to drive by others going in. the same direction are equally applicable whether the forward team is in motion or is for the moment standing still; so that the first objection fails. The second [344] is equally groundless, for the jury were fully charged on the subject of negligence, and were distinctly told that negligence was essential to the defendant's liability. 4. The court charged the jury that “ contributory negligence, to be a defense, must have contributed to produce the injury, and even then the defendant must have been in the exercise of ordinary care.” This is excepted to. As an abstract proposition, divorced from the facts of the case and the context, it may be erroneous. Taken in connection with the respective claims of the parties, it is not difficult to discover the meaning of the court. The supposed negligence of the plaintiff consisted in stopping just ahead of the defendant, and it was claimed that the defendant was negligent in driving by. The court doubtless intended to say that the defendant must use such care as men of ordinary prudence would use under the circumstances. In view of the plaintiff’s situation, admitting that she was there negligently, and that the defendant knew it, he was certainly required to use reasonable care not to injure her. In dangerous situations ordinary care means great care; the greater the danger the greater the care required; and the want of the degree of care required may amount to culpable negligence; In a crowded city a man may negligently leave the sidewalk and walk in that part of the street devoted to the use of carriages; but that will not justify the driver of a carriage in wantonly driving against him. In such cases there is manifestly a limit to the defense of contributory negligence; and that limitation the court had in niind. It is not necessary however to vindicate the charge wholly on that ground ; for taken in connection with what precedes and what follows the sentence quoted, we think the jury were not misled.The jury had just been told that the plaintiff must prove not only negligence by the defendant, but also “ that the injury was not caused in whole or in part by his own negligence.” And immediately after they were told that if the plaintiff “was carelessly and negligently run into bj7-- the defendant and injured, without any act on her part contributing to the injury, your verdict will be for the plaintiff.” [345] And again: “ The law is so that when both parties by their mutual neglect to use- proper precaution, have contributed to the injury, and when it would not have occurred but through the combined negligence of both, no damages can be recovered.” There are in all nineteen reasons of appeal, the others of which present several questions of minor importance. None of them however, although alluded to, are strenuously insisted on. We deem it unnecessary to consider them in detail. It is sufficient to say that in none of them do we find any reason for granting a new trial. There is no error in the judgment complained of and a new trial is not granted. In this opinion the other judges concurred.