Finkelstein v. Railway , 75 N.H. 303 ( 1909 )

The report should have been excluded. The fact that upon the plaintiff's cross-examination of the defendant's conductor it appeared that he made a report of the accident to the defendant, did not render the report competent as affirmative evidence for the defendant of the truth of the facts stated therein. Because one party proved the fact that a report was made did not authorize the other party to prove the contents of the report. The plaintiff did not offer any part of the report as evidence, and the question whether the defendant might then use other parts of it or the whole of it as explanatory evidence (Wentworth v. McDuffie, 48 N.H. 402; Whitman v. Morey, 63 N.H. 448; Page v. Hazelton, 74 N.H. 252, 254) did not arise. Nor can it be said that the contents of the report were not prejudicial to the plaintiff. The statement that the accident was wholly due to the plaintiff's want of care is sufficient to show that the admission of the report furnished the jury with incompetent evidence of a most damaging character to the plaintiff.

The plaintiff's cross-examination of the defendant's motorman, who had testified that the report stated the truth, as to his recollection of the report, did not amount to a waiver of the exception to its admission. The witness' credibility was properly tested in this way after the report had been admitted as evidence before the jury. Clearly, there was no waiver of the exception.

Exception sustained: verdict set aside.

YOUNG, J., dissented: the others concurred.