De Benedetti v. Mauchin

Upon the trial of this action in the court below, the declaration of one of the defendants who was driving the cart, by which the plaintiff was injured, was admitted iu evidence. The other defendants objected to it as not being admissible against them.

*217That admissions made by one tort feasor are not evidence against others joined in the same action, where the cause of action is the negligence of one or more of the parties; is settled by repeated decisions. See 2 Cowen & Hill’s Notes, 165, and cases there cited. But for several reasons this evidence could not have been excluded.

1st. It was admissible against the defendant making it.

2d. It was rather a part of the res gestee than an admission made subsequently, and as such was properly received.

8d. It was rather an excuse for the act, so far as the party was concerned, and not evidence to charge others.

And even if the testimony was subject to the objection, it became immaterial, because the whole transaction was proven by an eye-witness. The fact of the injury, and the mode omt was, it appears, proven by other testimony, which was not subject to any objection.

The evidence, as to what sums other organ grinders might earn, was not proper to prove the value of plaintiff’s labors, but it could do no harm, because the same witness added that the plaintiff earned the same amount.

There would have been no propriety in the court granting the motion to dismiss the complaint. It was not incumbent on the plaintiff to prove that he did not commit any act of negligence on his part. If none appears in the evidence, the presumption is in his favor, and the defendant must show such negligence to relieve himself from the consequence of his negligent acts.

As the plaintiff’s case was submitted, there was no such proof of negligence on the part of the plaintiff, and the conduct of the defendant, who was driving, was such as to warrant the inference that there was was negligence on his part.

But the court erred in refusing to charge the jury as requested at the 2d request in the return, viz.: that plaintiff must show that the accident was occasioned by the negligence of the defendant, Mauehin. The whole theory of this action, by which the other defendants were sought to be charged for Maudlin’s acts is, that they employed a servant who, while in their em*218ploy, was guilty of so much, negligence as to do injury to tbe plaintiff. Unless tbe jury found tbat tbe injury was produced by sucb negligence, a judgment could not properly be rendered against them. And even Maucbin, wbo was driving, was not responsible if bis conduct was not wilful or negligent. Tbe justice should bave charged upon this point as requested, and bis refusal to do so took from tbe jury tbe only question in tbe case on which there was any doubt.

Judgment reversed.