Opinion
Argued March 22, 1873
Decided June term, 1873
Francis Kernan for the appellant. Edwin R. James for the respondent.
On the trial the defendant called a witness, Hagan, who was foreman of the railroad track, on the division of the road where the accident happened, and he gave evidence on his direct examination of the number of men under him, and the condition of the track and ties, and of the precautions that were taken to discover any defects in the track. He testified that the track was in good condition, but gave no evidence in reference to the flaw in the rail, except he testified that he did not discover it before the accident. On his cross-examination he testified that, after the accident, he picked up and took care of some of the pieces of the broken rail, but not the two pieces containing the flaw, and that those pieces he did not find. He further testified that in June or July after the accident, he went to Watertown and there saw the attorney of the defendant, who inquired of him about the two pieces of rail, and suggested to him that some of the railroad men may have put them out of the way; that after he returned from Watertown, and while at work with his men, he mentioned the inquiry of the attorney, and Sullivan, one of the trackmen, told him that he picked up those pieces of rail and threw them into a pile of ties; that Sullivan was one of the trackmen at the time of the accident, and one of the men whose business it was to take care of the broken pieces of rail. In further cross-examination plaintiff's counsel then asked him: "What reason did he give you for hiding these two pieces of rail in the pile of ties?" To this evidence defendant's counsel objected, on the ground that Sullivan himself should be called to prove it, and that it was a declaration made after the time of the transaction. The judge stated that what Sullivan said after the transaction, and while he was not in the performance of duty to the railroad company, was not admissible; but what he said in reference to what he did in the line of his duty, and while in the employ of the company, was admissible, and overruled the objection, and defendant's counsel excepted. The witness then answered: "He said there was a flaw in the end of the rail and he thought he would put it out of the way." The plaintiff's counsel was quite persistent in getting in this evidence, and defendant's counsel was as persistent in his objections to it. The judge deemed it material and proper and admitted it, and the only question which I find it important to consider on this appeal is, whether he erred in his ruling in reference to it. It cannot be claimed that this question was proper as a mere cross-examination of the witness, Hagan. He had testified to nothing about the flaw in the rail, except that he did not discover it before the accident. The pieces of rail were produced at the trial by the defendant, and there was no dispute as to their identity. The ruling of the judge, admitting this evidence, can therefore be justified only upon the ground that the declarations of Sullivan, who, at the time he made them as well as at the time he hid the pieces of rail, was a servant in the employment of the defendant, were competent evidence in chief against the defendant.
The general rule is, that the declarations of persons not parties to the suit are incompetent. But sometimes the declarations of an agent, which are part of any res gesta which is the subject of inquiry, are received against the principal. The principal constitutes the agent his representative in the transaction of certain business; whatever, therefore, the agent does, in the lawful prosecution of that business, is the act of the principal whom he represents; and when the acts of the agent will bind the principal, his declarations respecting the subject-matter will also bind him, if made at the same time and constituting part of the res gestoe. They are then in the nature of original evidence and not of hearsay, and are the ultimate fact to be proven, and not an admission of some other fact. They must be made not only during the continuance of the agency, but in regard to a transaction depending at the very time. (1 Greenl. Ev., § 113; Luby v. The Hudson River Railroad Co., 17 N.Y., 131). Within these principles, the declaration of Sullivan admitted was clearly incompetent evidence. The fact, in reference to which the declaration was made, was wholly immaterial. There is no aspect of the case in which it was proper to prove, as evidence in chief, that Sullivan, in the first instance, hid the broken pieces of rail, no matter what his motive was; and hence, for this reason, if this declaration of his motive for hiding them had been made at the time, it would have been incompetent. But it was made about six months afterward, and did not accompany the act, and hence, for this reason also, it was incompetent.
But it is claimed that this error should, upon this appeal, be disregarded, because it did not in any way harm the defendant. The reception of illegal evidence is presumptively injurious to the party objecting to its admission; but when the presumption is repelled, and it is clear, beyond rational doubt, that no harm was done to the party objecting, and that the illegal evidence did not and could not affect the result, the error furnishes no ground for reversal. ( The People v. Gonzales, 35 N.Y., 59; Vandervoort v. Gould, 36 N.Y., 644.) Any illegal evidence that would have a tendency to excite the passions, arouse the prejudices, awaken the sympathies, or warp or influence the judgments of the jurors in any degree, could not be considered harmless. The defendant, on the trial, denied that it was guilty of any carelessness, and gave evidence tending to show that it exercised all the care and diligence required to discover the defect which caused the accident; and whether it did or not was one of the questions submitted to the jury. It was held competent for the plaintiff to show that one of its servants, who had the supervision of the track, declared that, immediately after the accident, he hid the defective pieces of rail. The jury might infer from this act that he was conscious of some neglect or fault on his part, or on the part of the company, which he was desirous of concealing. Such an inference would not be unnatural, and would certainly prejudice the defendant upon one of the questions, as to which there was some conflicting evidence. It is quite obvious, too, how eloquent counsel could appeal to the jury, and excite their feelings against the defendant, because its servants, by their negligence, not only caused the serious injury to the plaintiff, but afterward tried to conceal their guilt and thus cheat him out of his damages. I am, therefore, for these reasons, not satisfied that this evidence did not in some degree prejudice the defendant.
But it is further claimed that this evidence did not harm the defendant, for the reason that it afterward called the witness, Sullivan, and he gave evidence to the same facts proved before by his declaration. He testified that no one told him to put the pieces in the pile of ties, and that he did it so that no one could find them. Upon the evidence of Hagan, alone, as to the declaration of Sullivan, it might have been inferred that Sullivan hid the pieces to conceal the flaw, in the line of his duty, under the general or special direction of some superior officer or agent of the defendant; and hence it seemed important that defendant should call Sullivan, and prove by him under what circumstances he hid them, and that he did it of his own motion. Evidence cannot be said to be entirely harmless when the party objecting to it is obliged to call a witness to explain or contradict it. The defendant in this case may, if the declaration had not been proved, have preferred to try the case without calling this over-zealous servant, whose conduct was such as to work it some prejudice. Besides, the fact still stands out that the plaintiff, against the objection of the defendant, put into the case the illegal evidence as to the motive which caused Sullivan to hide the pieces of rail. I am of the opinion, therefore, that the fact that Sullivan was called, and sworn as a witness, does not cure the error committed in allowing his declaration to Hagan to be proven. ( Warrell v. Parmlee, 1 Comst., 519.)
I have examined the various other exceptions taken during the progress of the trial, and believe none of them to be well taken.
An affidavit was read on the argument, showing that there is great danger that the plaintiff will die before there can be a new trial of this cause, and we were asked, in case we grant a new trial, to impose as a condition that the action should not abate by reason of his death. Such a condition could be imposed if the defendant were asking for a new trial as a matter of favor, or if the new trial rested in the discretion of the court. But when a party asks a new trial as a matter of right, because some legal error was committed on the trial, this court has no discretion to grant or withhold it, but, finding error, is bound to reverse the judgment and grant a new trial, and cannot impose such a condition.
It follows, from these views, that the judgment must be reversed and new trial granted, costs to abide event.
All concur.
Judgment reversed.