the trial. table to his injuries received at the time of the accident. It will hardly be contended that the plaintiff could have introduced these statements, made by himself long after the action was commenced, as evidence on his part to prove the effect which the accident had upon his health, or to corroborate his statements made under oath as a witness on the trial of the action; and, if they were not admissible for these purposes, we fail to see how they are admissible at all, unless they were admissible in order to enable the expert witness to determine as to what was the real nature of his troubles at the time he was examined by him. It is clear that they were not admissible for the purpose of determining whether such present condition of the plaintiff was attributable to the accident, and it was mainly for that purpose that such statements were admitted. The statements of a party made in his own favor are seldom, if ever, received as evidence in his own behalf, except when they are made at such times, and under such circumstances, as to be a part of the res gesta. It may be urged that this evidence could not have prejudiced the defendant, because the plaintiff had made the same statements to the jury as a witness on the trial. This fact has never been held a sufficient reason for holding that the statements of the party made out of court, and not under oath, may be received in evidence on It is a method of bolstering up or sustaining the evidence of a party which has never received the sanction of the courts, and is clearly not admissible. That this evidence was improperly received is clearly shown by the following authorities: Illinois Cent. R. Co. v. Sutton, 42 Ill. 441; Roosa v. Boston Loan Co., 132 Mass. 439; Grand Rapids & I. R. Co. Huntly, 38 Mich. 543; Heald v. Thing, 45 Me. 392; Quaife Chicago & N. W. R. Co., 48 Wis. 513-526, Kreuziger v. Chicago & N. W. R. Co., 73 Wis. 158-164. Whatever may be the rule as to the admissibility of the statements made by a party when consulting a physician or surgeon for the purpose of obtaining advice or treatment for his disease or injury, we are clear that, when such statements are made by the party, after action commenced, to an expert, for the sole purpose of calling such expert as a witness for himself on the trial of the action, to give an opinion as to the nature of his comsuch statements are inadmissible in his own behalf. To allow such statements to be given in evidence would be to allow the party to give in evidence his declarations made not under trial under oath, which all courts hold to be incompetent, and not permissible. This rule of exclusion is especially applicable to the case where the person whose state of health or V. V. whose injuries are the subject of controversy, is himself a competent witness in the case, and is sworn and examined in regard to his health or injuries. Evidence as to ties and roadbed at place of accident. It was also objected by the counsel for the plaintiffs in error that it was error to permit the plaintiff to show what the condition of the ties was at the place of the accident the next summer, when the road was repaired at the point where the accident happened. We think the evidence as to the condition of the ties at that place, as to their soundness, and the condition of the roadbed there at the time the ties were removed, in the summer after the accident happened, competent evidence, as tending, to some extent, to show the condition at the time of the accident. The mere fact that the road was repaired at that place six months after the accident, would not in itself be competent evidence tending to show that it was out of repair when the accident happened; but if, in making such repairs, it was found that the ties were in such a state of decay as to fairly lead to the conclusion that they were in a decayed state when the accident happened, or that the condition of the roadbed was such as would fairly tend to prove that it was not in a safe condition when the accident happened, such evidence would be clearly admissible. Its weight would be a question for the jury. For the errors in admitting evidence above mentioned, the judgment of the circuit court must be reversed. The judgment of the circuit court is reversed and the cause is remanded for a new trial. Injuries Caused by Defective Track-What Evidence is Admissible in Relation to the Track.-See Terre Haute, etc. R. Co. v. Clem (Ind.), 42 Am. & Eng. R. Cas. 233, Mo. Pac. R. Co. v. Mitchell (Tex.), 41 Id. 224; Chicago, etc., R. Co. v. Clark (Neb.), 38 Id. 192, note 199, Stoher v. St. Louis, etc., R. Co. (Mo.), 31 Id 229, Little Rock, etc., R. Co. v. Eubanks (Ark.), 31 Id. 176; Pattee 7. Chicago, etc., R. Co. (Dak.), 34 Id. 399. note 404; Cleveland, etc., R. Co. v. Newell (Ind.), 23 Id. 492, Morse 7. Minneapolis. etc., R. Co. (Minn.), 11 Id. 168; Sidekum v. Wabash, etc., R. Co. (Mo.) 30 Id. 640, note 644; St. Louis, etc., R. Co. v. Weaver (Kan.), 28 Id. 341; Ely 7. St. Louis, etc., R. Co. (Mo), 16 Id. 342, note 345. Photograph of Trestle and Wrecked Train in Evidence. In Kansas M. & B. R. Co. v. Smith, Ala. Sup. Ct., June 11, 1890, which was an action brought to recover damages for personal injuries sustained by plaintiff, on account of a wreck on one of defendant's trains on which he was riding, it was held that a photograph of a trestle and the wrecked train, taken about two hours after the accident and verified by the testimony of the photographer, was admissible in evidence, to aid the jury in properly understanding the case. SOMERVILLE, J., said: The competency of such evidence was settled in Luke 7. Calhoun Co., 52 Ala. 115. approving a like ruling in the case of Udderzook v. Com., 76 Pa. St. 340, where a photograph of a person in life, shown to be a correct picture, was admitted in evidence for the purpose of aiding in the identification of a deceased person alleged to have been murdered. The case of Ruloff v. People, 45 N. Y. 213, supports the same principle. In the case of Blair v. Pelham, 118 Mass. 420, which was an action against a town to recover damages for injuries caused by a defect in a highway, the defendant was permitted to put in evidence a photograph of the place of the accident, on its verification by the photographer as a true representation. So in Church v. City of Milwaukee, 31 Wis. 512, an action for damages resulting to a lot owner from a change in the grade of a street, a photograph of the premises shown to be correct was admitted to aid the jury in arriving at a clear and accurate idea of the situation of the premises, and enable them to better understand how they were affected by the change in the grade. And Cozzens v. Higgins, 33 How. (N. Y.), Pr. 436, decided by the New York court of appeals, is to the same effect. In an action of trespass against an adjoining proprietor, for the wrongful act of opening holes in the walls of the plaintiff's cellar, so as to render it untenable, by projecting into it heavy beams, a photographic view of the cellar was admitted in evidence as an appropriate aid to the jury in applying the evidence. The case of Dyson . New York & N. E. R. Co., 57 Conn. 10, is another authority directly in point, where, in an action for damages against a railroad company, a photographic view of the locus in quo of the accident was held to be admissible in evidence. The same ruling precisely was made in the case of Archer New York, N. H. & H. R. Co., 106 N. Y. 589 (decided in 1887, by the New York court of appeals.) We entertain no doubt as to the Soundness of these rulings, and they fully support the action of the court in admitting in evidence the photograph of the wrecked train and surrounding locality in this case. 1 Whart Ev. (3 Ed.,) § 676, Eborn 7. Zimpelman, 47 Tex. 503; 26 Am. Rep. 319-321, note; Marcy v. Barnes, 16 Gray (Mass.), 161; Locke v. Sioux City & P. R. Co., 46 Iowa. 109.” IRELSON et ux ข. SOUTHERN PACIFIC R. Co. (Louisiana Supreme Court, May 19, 1890.) Injury to Passenger Omission of Act by Employe-Test of Company's Liability. In order to impose a liability on a railroad company for the consequences resulting from the omission of an act by one of its employes, the test is not whether, had the act been done the accident would not have occurred, but whether the act omitted was one which it was the duty of the employe to perform. Passenger Warning Conductor-Duty to Stop Train.-A conductor, who and felt a an ordinary passenger that he has heard an unusual loud noise, jolt which has made the coach jump and aroused him, and who, after reasonable inspection, inside and outside of the car, does not become conscious of a cause of alarm and danger, is not bound to stop the train for an inspection. Same-Breaking of Wheel--Derailment of Coach-Damnum absque injuria.-His failure to do so, and consequent injury sustained thereby passenger by the derailment and capsizing of the coach, caused by the breaking of a wheel under a car in front, is not such negligence as imposes company the obligation of indemnity for harm sustained. It is Same to a on the Zamnum absque injuria. APPEAL from Civil District Court, Parish of Orleans. L. L. Levy, for appellee. BERMUDEZ, C. J.-This is an action in damages for bodily injury sustained in consequence of the alleged negligence of employes for whose acts the defendant is liable. Case stated. The plaintiff complains that on the 16th day of January, 1888, at 4 A. M., while she was a passenger on a sleeper attached to a train of the company, a wheel from under the coach in front of that in which she was riding broke; that her sleeper became uncoupled, derailed, and capsized; that, in the upsetting, she received two cuts above the collar-bone from the window-glass; that she became unconscious, suffered considerably, was subjected to humiliations, had to take care of her injuries, was disabled for months, and that scars remain, a permanent disfigurement of her hand. The charge is that the company failed to provide for careful servants, safe conveyance, and to use extraordinary diligence in the management and running of the train; that the accident occurred through the defectiveness of the fastenings, and lack of durable appliances in the cars, and giving way of the tracks, and other defects and acts of negligence in the direction of the train; and damages to the extent of $2,500 are claimed as pecuniary compensation. In defense, the company contends that it did provide a safe conveyance, with proper equipments, as far as it could do so, with the exercise of the utmost care and skill, and that the accident was solely due to the latent defect in a wheel, which no human care or skill could have detected or prevented. From a judgment allowing plaintiff $750, defendant appeals. The district judge succinctly recites the following facts found by him: "The cause of the accident was the breaking of the wheel at a point about 135 miles from New Orleans. It had been carefully inspected at La Fayette, and showed no patent defects. The track was in good order. The train was properly equipped. The running gear and fastenings of the car were in good condition. The train was not running at an unusual rate of speed. The wheel accidentally broke from some hidden defects or cause which human care and foresight could not prevent." We concur in this finding, but differ from the reasons assigned conducive to an allowance of damages, in which our learned brother labors to show that the conductor did not, after the breaking of the wheel, stop the train, and that, had he done so, the accident would not have happened, and the plaintiff would not have been injured. Under this theory, we think the duty of the conductor was extended too far. Defect in wheel. There can be no doubt that, as it is shown that the wheel was manufactured in a proper manner, by respectable manufacturers, and that, like it, the axle was without blemish; that as no defect was revealed after the usual examination and test on the night of the accident, and shortly before its occurrence-no fault could be imputed to the defendant from which liability for the injury sustained could be attached. Hutch. Carr. §§ 497, 508; Toledo, W. & W. R. Co. v. Beggs, 85 Ill. 80; Grand Rapids & I. R. Co. v. Huntley, 38 Mich. 546, 548; McPadden v. New York Cent. R. Co., 44 N. Y. 481. Duty of conductor warned by passenger. The plaintiff does not appear to contest the condition of things found by the district judge or the law applicable to it; but her contention is, as the conductor of the train had been seasonably warned by a passenger who had heard an unusual loud noise and felt a jolt, which had made the coach jump, arousing him, and who had asked him to see about it, this official did not examine and stop the train, and that, had he done so, he would have discovered the broken wheel, provided against the consequent danger, and thus would have prevented the accident. The law seems clear that, when the sole basis of liability is the omission to perform a certain duty suddenly and unexpectedly arising, there ought to be at least a consciousness of the facts which raise the duty on the part of the person charged with its performance. Railways are not liable for a mistaken exercise of judgment on the part of their employes in an emergency, nor for a failure on the part of their servants to act with the utmost promptitude when the circumare such as to afford no time for deliberation. Patt. stances Ry. Acc. Law, p. 111, § 115. In such cases, the party charging the omission must prove that the duty alleged existed, that the omission constituted a legal fault, and that, had it been performed, the accident would not have happened. The conductor, heard as witness, said that, upon the statement of the passenger, he immediately went back in the car, saw nothing unusual, stood on the platform, looked outside, and discovered nothing ; that he had just stepped into the second class coach, when he saw the bell line jerk, and that he pulled the bell to stop; that he went back, and got the passengers out of the He also says that, in passing over a switch or a frog, a train makes a loud noise, and that it is not an unusual thing for passengers to become alarmed, and to report to him, in such cases, when there is no occasion for fear. It is evident that, had the conductor stopped the train, when the passenger told him of what he had heard and felt, and had he looked into the exciting condition of things, he could have discovered car. 44 A. & E. R. Cas.-21 |