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planks." This testimony was admitted, sub or otherwise, is an important one in any sys-
ject to the defendant's exception. Baker tem of evidence whose object is the ascer-
died in a few hours thereafter. The broken tainment of facts. Its development has been
pieces of his lantern were found near him promoted, in modern times, by an effort to
between the planks, and there was blood afford the triors of fact all reasonable means
on the rail at the end of the planks, and on of ascertaining the truth, instead of witb-
one of the car wheels. Jigger stands are of holding from them all information possible
frequent occurrence on the defendant's va by the rigid application of certain rules of
rious roads on which Baker had worked, but exclusion. The question is not now, how
in a great majority of cases they are op little, but how much, logically competent
posite car houses, and not in the immediate proof is admissible?
vicinity of switches. One of the trainmen In cases of this character it is important
who worked with Baker testified that he had to ascertain what, if any, relevancy the dec-
not noticed this jigger stand before the ac laration has—in other words, what it tends to
cident. It did not appear whether Baker prove; for unless its natural effect is to
had ever operated this switch, or whether prove or explain a point in issue or a con-
he had ever got off his car at this point on troverted fact, it is not admissible. In this
the side where the stand was. The stand case the burden was upon the plaintiff to es-
had been there from seven to ten years. It tablish, by a balance of the probabilities, that
appeared that some years ago Baker went his intestate received his ,injury in conse
over the road as brakeman a large num quence of the negligence of the defendant.
ber of times, but had not worked there in This, in a broad general sense, was the is-
recent years until about two months before sue tried; but it involved a material inquiry
the accident.

as to the manner in which the accident hapDoyle & Lucier, for plaintiff. Hamblett &

pened. If it is assumed that suffering the Spring and Burns & Burns, for defendant.

planks to be where it is admitted they were
was a negligent act of the defendant, it was

important for the plaintiff to show that they WALKER, J. It is claimed that Baker's were the proximate or effective cause of the statement, made directly after the infliction accident. If, in the exercise of due care, the of his injury, was not admissible. If the dec deceased would not have received the inlaration was merely a narrative of a past jury complained of but for the existence of event, the evidence of it would be inadmis the planks at that particular place and time, sible, upon the ground that ordinarily hear the plaintiff would have sustained the bursay evidence is not received in proof of the den assumed by him. On the other hand, if truth of an assertion. The uniform practice the cause of the accident was something othof the courts in common-law jurisdictions er than the planks, as manifestly might have has resulted in the establishment of this prin- | been the case, his failure in this respect ciple, as a necessary and useful rule in the might have been fatal. Nashua Iron & Steel investigation of questions of fact. But when Co. v. Railroad, 62 N. H. 159. The controthe declaration of one not a sworn witness versy was whether the planks caused the deupon the trial is something more than mere ceased to stumble and fall, and thus to sufnarrative when its probative force de fer the injury inflicted upon him by the car rived in part, at least, from sources other wheel running over his legs. The plaintiff's than the credibility of the declarant-an op evidence was that the deceased was found portunity is afforded for the argument that almost immediately after the accident lying it does not fall within the strict rule against between the planks, with his legs practically hearsay evidence, or that it constitutes an severed from his body; that the fragments exception to the rule. It is then possible to of his broken lantern were on the ground say that the declaration, while verbally a near him; and that blood and bits of flesh mere narrative, is something more, and may were found upon the car wheel and near the be, for that reason, of such probative force planks. These are all physical facts which, as to be admissible as evidence upon

as evidence, afford some information as to terial issue. It may be so connected with how the accident happened. They are releother controverted facts as to be itself a vant details or results of the main fact. In fact or circumstance naturally growing out the strictest sense, they may not together of, and in some sense attested by, them. constitute or fully evidence the fact in conThe verbal statement of a person made un troversy; but in law they are said to be a der some circumstances may be a part of the part of it. The admission of evidence of this actual occurrence, and be entitled to as much character is placed upon the ground that it weight as evidence as any other part of the discloses to the jury the facts and circumtransaction. This is the principle, it is be stances which attended the principal fact. lieved, that is involved in the somewhat ob In a not inappropriate sense, they are a part scure doctrine of res gestæ, which is often of the res gestæ, and exist as evidence of it. resorted to, apparently, more on account of Willis v. Quimby, 31 N. H. 485; Tucker v. its convenient indefiniteness than for its sci Peaslee, 36 N. H. 167, 181; Wyman v. Perentific precision. But the principle, wheth kins, 39 N. H. 218; Willey v. Portsmouth, 64 er expressed in an abbreviated Latin phrase N. H. 214, 219, 9 Atl. 220.

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When, instead of attendant physical facts minutes after the actual infliction of the inand circumstances, the evidence consists of a jury, while he was lying between the planks, declaration, made by a person at the time of groaning on account of the pain, and while the event or transaction which is under in no substantial change had occurred in the vestigation, its admission depends upon a attendant circumstances, it is not admissible, similar principle. If its materiality or rele because the accident was then a past event, vancy is conceded, the question whether it is and the statement a mere narrative. But a part of the res gestæ arises; that is, wheth this technical refinement is not based upon a er it occurred in such intimate connection reasonable view of the principle involved. with the event in issue as to constitute it in No satisfactory reason is assigned for the a reasonable and proper sense a part thereof. distinction suggested. If the statement of a If it does, it is, in its probative bearing, su party made while a serious injury is being inperior to mere hearsay remarks, and may, flicted upon him is regarded as an evidenti. for that reason, be admissible. "Its connec ary fact throwing light upon the manner of tion with the act gives the declaration greater the occurrence, why does not the same stateimportance than what is due to the mere as ment, made immediately after the principal sertion of a fact by a stranger, or a declara event, as an intimately connected and natural tion by the party himself at another time. result or detail thereof, in the presence of all It is a part of the transaction, and may be the physical facts of the accident, constitute given in evidence in the same manner as any an equally admissible part of the proof? other fact." Hadley v. Carter, 8 N. H. 40, Why may it not be as much a part of the 43. “Where evidence of an act done by a res gestæ as the fact that the declarant is party is admissible, his declarations, made at found at the same time lying in a place and the time, having a tendency to elucidate or position indicating the manner of the accigive a character to the act, and which may dent? His position as well as his declaration derive a degree of credit from the act itself, may be to some extent subject to his volition. are also admissible, as a part of the res ges If the very short period of two minutes after tæ." Sessions v. Little, 9 N. H. 271, 276. a man's legs have been severed from his

After approving the statement quoted body in a railroad accident prevents his decabove from Hadley . Carter, the court, in laration then made from being deemed a part Wiggin v. Plumer, 31 N. H. 251, 267, state of the transaction, it is difficult to understand the principle as follows: "When a fact is why his position, which may be as much suboffered in evidence, the whole transaction, if ject to his intelligent control during that brief it consists of many particulars, may and and trying interval of time as his power of ought to be proved. Every additional cir verbal communication, should be regarded as cumstance proved may vary the effect of the a competent evidentiary fact explaining the evidence, may neutralize it, or give it point. manner of the accident. The fact is that What is then said by the parties, and what is both his declaration and his position may be, said by others to them, relative to the sub under the circumstances, credible and adject of the transaction, is a part of the trans missible evidence, for very similar reasons; action itself. It is admissible on the same and that to exclude the evidence in the one principle that every other part of it is, that case, because it may be fabricated, would the whole matter may be seen by the jury. furnish a reason for its exclusion in the oth

Contemporaneous, but otherwise un er. The possibility of its being unreliable connected conversation, is rejected, on the would seem to relate to the weight, rather same ground as other unconnected facts. If than to the admissibility of the evidence. the statement offered in evidence does not That the doctrine of exact coincidence in tend to elucidate or give character to the such cases is not followed in this state is acts proved, it is to be rejected. If it is up plainly indicated in Caverno v. Jones, 61 N. on the same subject and relative to the act H. 623, 624, in which it was decided that, in in proof, it should be received.” See also, to trespass for assault and battery, threats to the same effect, Maburin v. Bellows, 14 N. do the plaintiff bodily harm, made by the H. 209, 212; Tenney v. Evans, 14 N. H. 343, defendant so soon after the alleged assault 350, 40 Am. Dec. 194; Morrill v. Foster, 32 as to constitute a part of the transaction, are N. H. 358.

competent. Nor do any of the decisions in But while admitting that the foregoing this jurisdiction warrant the assumption that statements of the law are substantially cor the defendant's theory has been adopted rect, the defendant insists that a declaration here. See cases above cited. of the character received in this case, in or Cases in other states and in England, it der to be admissible, must have been strictly must be admitted, are not in accord. Some and literally contemporaneous with the fact adopt an unreasonably strict construction of it was intended to elucidate or explain. In the rule (Reg. v. Bedingfield, 14 Cox, C. C. other words, it is in effect conceded that if, 341; State v. Davidson, 30 Vt. 377, 73 Am. while the car wheels were passing over Bak Dec. 312; Eastman v. Railroad, 165 Mass. er's legs, be had exclaimed, “I fell over these 312, 43 N. E. 115; Louisville, etc., R. R. v. old planks,” that statement would have been Pearson, 97 Ala. 211, 215, 12 South. 176; admissible as a part of the res gestæ; but it Cleveland, etc., R. R. v. Mara, 26 Ohio St. is claimed that, although made within two 185); others admit statements only remotely

connected with the principal fact (Insurance show how the accident happened; that is, Co. v. Mosley, 8 Wall. 397, 19 L. Ed. 437; the proximate cause of it. It was not mere Commonwealth v. McPike, 3 Cush. 181, 50 hearsay, depending alone for its truthfulness Am. Dec. 727; Craig v. State, 30 Tex. App. upon the credibility of an unsworn witness. 619, 18 S. W. 297); while others adopt what It was directly connected in point of time seems to be the more rational view, as stated with the main fact, and was made while in Commonwealth v. Hackett, 2 Allen, 136, Baker was in the place where the force of 140, that statements are admissible when "it the collision presumably threw him, and in appears that they were uttered after the view of all the surrounding physical facts lapse of so brief an interval, and in such connected with his misfortune. It cannot be connection with the principal transaction, as said, therefore, as a matter of law, that his to form a legitimate part of it, and to re remark did not derive credit from the occur. ceive credit and support as one of the circum rence with which it was so intimately constances which accompanied and illustrated nected, or that was not in a reasonable the main fact” (Rawson v. Haigh, 2 Bing. sense a part thereof and admissible in evi99; Rouch v. Railway Co., 1 Q. B. 51; Reg. dence. Although in form it was a narrative, v. Lunny, 6 Cox, C. C. 477; Waldele v. Rail it could not be excluded for that reason road, 95 N. Y. 274, 47 Am. Rep. 41; Martin alone, if in other respects it was competent. v. Railroad, 103 N. Y. 626, 9 N. E. 505; Es Nor does the fact that it was made in answer tell v. State, 51 N. J. Law, 182, 17 Atl. 118; to the witness' question deprive it of its Mayes v. State, 64 Miss. 329, 1 South. 733, character as a part of the res gestæ. Fish v. 60 Am. Rep. 58; Pittsburg, etc., Ry. V. Railway, 96 Iowa, 702, 707, 65 N. W. 995; Wright, 80 Ind. 182; Wood v. Si. e, 92 Ind. Crookham v. State, 5 W. Va. 510. To ex269; Keyes v. State, 122 Ind. 527, 23 N. E. clude it "would be practically to say that no 1097; Chicago, etc., Ry. v. Becker, 128 Ill. declaration or statement, however near to 545, 21 N. E. 524, 15 Am. St. Rep. 147; the principal fact. or however important and Lambert v. People, 29 Mich. 71; People v. material as giving to it color and significance, Gage, 62 Mich. 271, 28 N. W. 835, 4 Am. St. could ever be admitted in proof." CommonRep. 854; People v. O'Brien, 92 Mich. 17, 52 wealth v. Hackett, 2 Allen, 140. How far N. W. 84; Christianson v. Company, 92 Wis. the question of the admissibility of such tes619, 66 N. W. 699; Fish v. Railway, 96 Iowa, timony may be determined by the trial court 702, 65 N. W. 995; McMurrin v. Rigby, 80 as a matter of discretion, it is unnecessary Iowa, 322, 45 N. W. 877; State v. Rider, 95 in this case to decide; for the exception to Mo. 474, 8 S. W. 723; People v. Vernon, 35 its admission presents no error. In CommonCal. 49, 95 Am. Dec. 49. See, also, Professor wealth v. McPike, 3 Cush. 181, 181, 50 Am. Thayer's article on Bedingfield's Case, 14 Dec. 727, it is said that, “in the admission Am. Law Rev. 817; Id., 15 Am. Law Rev. of testimony of this character, much must 71).

be left to the exercise of the sound discreThe seriousness of the injury, the charac tion of the presiding justice''; while the conter of the accident, and the surrounding trary of that proposition seems to be mainphysical circumstances and results of the oc tained in Lund v. Tyngsborough, 9 Cush, 30, currence, attending the declaration as well 41. as the principal fact, are necessary matters The defendant insists that the motion for for consideration in the determination of the a nonsuit should have been granted, because question of the admissibility of the declara Baker must be held to have assumed the tion. When a person receives a sudden in risk in consequence of which he was injured. jury, it is natural for him, if in the posses This contention, in effect, concedes that the sion of his faculties, to state at once how it defendant was negligent in permitting a jig. happened. Metaphorically, it may be said, ger stand to be where this one was, and that the act speaks through him and discloses its it was an operating cause of the accident; character. It is as if it were a part of the but it is claimed the plaintiff cannot recov. act itself. This view of the common experi er, for the reason that the danger incurred ence of mankind shows that, if the declara was one of the incidents of his intestate's . tion has that character, it possesses an im employment. If the latter did not know of portant element of reliability and significance the existence of the jigger stand near the which is foreign to narrative remarks made switch which he was about to operate, or so long after the event as to derive directly if, in the exercise of ordinary care in the no probative force from it, and that it should performance of his duties, he was not chargebe admitted like any other material factor able with such knowledge, he cannot be held evidentiary detail. If this principle of evi responsible for consequences resulting from dence may be diílicult of application in prac his failure to take such precautions for his tice, its soundness is not thereby weakened. safety as a knowledge of the danger would A discriminating observance of it will pro have suggested to a man of ordinary prumote the successful discovery of truth, which, dence. Otherwise he is precluded by the without its aid, is often involved in great doctrine of the assumption of risk. "The obscurity.

plaintiff was bound to prove that the special It is not contended that Baker's statement danger causing the injury was not known to" was not relevant, or that it did not tend to Baker, “and in the exercise of ordinary care

by him would not have come to his knowl ination of the plaintiff's witnesses that these edge." Burnham v. Rallroad, 68 N. H. 567, appliances are numerous on lines of road 44 Atl. 750.

on which Baker had worked, it also appear. If the fact that the accident happened is ed that they are seldom placed near a switch, not alone sufficient evidence of the injured and usually lead into car houses, which party's want of knowledge of the existence would afford some notice of their existence. of the defective appliance causing it, or of Upon the evidence, it might be found that a his exercise of due care (Huntress v. Rail brakeman ought to know that in the vicinity road, 66 N. H. 185, 34 Atl. 154, 49 Am. St. of a car house there would in all probability Rep. 600; Gahagan v. Railroad, 70 N. H. 441, be a jigger stand, and that its existence near 50 Atl. 146, 55 L. R. A. 426; Waldron v. a switch and away from a car house was so Railroad, 71 N. H. 362, 52 Atl. 443), the man unusual as to make it unreasonable to say ner of its occurrence, when that is in part that a brakeman ought to anticipate such an disclosed by the evidence, may warrant an arrangement at every switching point. It inference in his favor upon these points. In was not unreasonable for the jury to infer this case the plaintiff's evidence (which, up from the evidence that men of ordinary pruon this motion, is to be taken as true) show dence in Baker's position, and possessing his ed that it was Baker's duty to set the switch knowledge of the means employed in the which was near the jigger stand. This stand business of railroading, would not anticipate consisted of two planks about 15 feet long, the existence of a jigger stand at this parplaced at right angles with the track. When ticular point. If upon this subject fair-mindnearly opposite this place, at about 2 o'clock ed men might differ, the question should be in the morning, Baker, who was on a car, submitted to the jury. It does not appear went down over the side of the car to set that Baker ought to have anticipated the pethe switch. The night was a dark one. culiar obstruction which caused him to stumVery soon thereafter he made an outcry, the ble. car wheels passed over his legs, and he at The further contention is made that there once said he stumbled over the planks. His is no evidence that Baker exercised reasonposition immediately after the accident, the able care in the performance of his work at blood on the rail between the planks, as one the time of the accident-a fact that the witness testified, the pieces of his broken lan plaintiff was bound to prove by competent tern near him, corroborated and supported evidence. But it is not necessary that the the statement that he stumbled over the evidence should be direct. The fact may be planks. If he had known that there was a inferred from circumstances; and, in the abjigger stand at that place, he would have sence of direct proof, the question is whethkuown that some was necessary to er the circumstances legitimately warrant an avoid falling over it in the performance of inference of the fact. Hutchins v. Macomhis work. It is hardly conceivable that he ber, 68 N. H. 473, 44 Atl. 602; Burnham y. would have knowingly encountered that dan Railroad, 69 N. H. 280, 282, 283, 45 Atl. 563. ger-that is, knowing the obstruction was di When Baker was last seen before the accirectly in his way, he would have stumbled dent, he was getting down over the side of over it. The act of stumbling usually im the car nearly opposite the switch, for the plies the existence of an object in a trav purpose, evidently, of setting the switch. eler's way of which he was at the time un He was attending to his duty. He had had conscious. It is no answer to say that Bak extensive experience as a brakeman, and uner must have known of this obstruction be- derstood perfectly how to perform his work cause he had been over the road as a brake with reasonable safety under ordinary cirman 10 or 12 times within 2 months of the cumstances. The time that elapsed after his accident; for it appeared that men who lantern disappeared over the side of the car worked with him during that time had not until he cried out was very brief. What he noticed it before the accident. It was not was doing during that short space of time is so conspicuous as necessarily to attract the not a mere matter of conjecture. It was attention of brakemen. It is at least ap competent for the jury to infer that he was parent that fair-minded men might reason proceeding to reach the switch in the way ably draw the inference from the evidence an experienced brakeman would adopt under (Hardy V. Railroad, 08 N. H. 523, 536, 41 the circumstances, and that such a way Atl. 179; Whitcher v. Railroad, 70 N. H. would be a reasonably prudent one--not the 242, 245, 46 Atl. 740) that Baker did not opposite. The evidence was sufficient to know that his approach to the switch lay warrant that finding, in the absence of any over a jigger stand.

evidence tending to show that he was negBut it is urged that he ought to have ligent. Hutchins v. Macomber, supra. known it. His experience for many years As there is no contention that the evias a freight brakeman must have afforded dence did not warrant a finding of the dehim the information that such stands are of fendant's negligence in permitting the jigger frequent occurrence on the line of a railroad, stand to be near the switch in question, no and that they are necessary appliances at error is apparent in the trial, and the vercertain points for the use of the sectionmen. dict must stand. But while it appeared from the cross-exam Exception overruled. All concurred.

care

(69 N. J. L. 172)
CARDIFF V. NEW JERSEY STATE

BOARD OF ARCHITECTS. (Supreme Court of New Jersey. Feb. 24,

1903.) ARCHITECTS-RIGHT TO CERTIFICATE. 1. Under the act entitled "An act to regulate the practice of architecture," approved March 24, 1902 (P. L. 1902, p. 51), creating the State Board of Architects, and requiring persons about to engage in the practice of architecture to submit to examination and obtain a certificate from the State Board, it is provided that any person who shall, at the time of the passage of the act, be engaged in the practice of architecture in this state, and shall present to the State Board an affidavit to that effect, shall be entitled to receive such certificate upou the payment of the regular fee. The prosecutor presented his application in due form, accompanied by his affidavit showing that he was engaged in such practice in this state at the time of the passage of the act. He was afterwards examined before the Board upon the facts_stated in the affidavit, and as a result the Board rejected the application. Held, on review, that the refusal of the certificate was not justified by the facts developed, and that the action of the Board should be reversed, and that a certificate should issue.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of Joseph A. F. Cardiff, against the New Jersey State Board of Architects, to review its action in refusing prosecutor a certificate. Reversed.

Argued November term, 1902, before DIXON and HENDRICKSON, JJ.

John J. Mulvaney, for prosecutor. Corbin & Corbin, for defendant.

form adopted by the Board and with the proper affidavit annexed, as therein required. The application was sworn to on May 28, 1902. The applicant was required to name or describe by location two buildings of which the applicant was the architect, with the names and post office addresses of the owners thereof. This the prosecutor did. He gave his own present office and place of business as 288 Monmouth street in Jersey City. The applicant submitted himself to examination before the Board. This examination appears as a part of the return, preceded by the following statement: “Examination of architects applying for certificates by affidavit.” The examination was conducted by the president of the Board. A careful inquiry was made as to the allegations of the affidavit, the applicant answering in detail every question fully, and stating in answer to questions that he had a sign out at his place of business a few months prior to the passage of the act, and at the time of its passage. Being further examined he gave in detail his connection as architect in the erection of a number of other buildings, some of which were built under his personal supervision as such. The buildings referred to in the ap. plication and in the examination were located in Jersey City, where this examination was conducted. It was also developed in his examination that his name had been in the directory as an architect for a number of years past, and he had used stationery with his name as architect upon it, and that in 1900 he had written five articles on building construction for architectural papers in New York. He had also worked in the office of an architect in the city of New ork, and before that he was with the secretary of the Board before which he was being examined. The return further shows that at a meeting of the Board at their rooms in Jersey City on July 18, 1902, opinions of counsel of the Board were received and filed, and then this entry from the minutes appears: “Upon the advice of counsel the application of Jos. A. F. Cardiff was not granted, and the secretary was instructed to write and inform Mr. Cardiff of the action of the Board," etc. Annexed appears the letter of counsel advising the Board that the applicant appears to bave been and to be employed by others, and to be classed as a learner or student in architecture, and recommending that Mr. Cardiff be not admitted without examination. There is no evidence to justify the conclusion that the applicant was a mere learner or student in architecture; but, on the contrary, we think the evidence shows, without dispute, that the prosecutor was engaged in the practice of architecture in this state on March 24, 1902, when the act was approved.

It has been urged that, inasmuch as the case shows that the prosecutor admitted, in reply to a question by the secretary, that on one occasion, when questioned in the secretary's office, where prosecutor was working,

HENDRICKSON, J. The prosecutor of this writ seeks to set aside the action of the New Jersey State Board of Architects, refusing to grant his application for a certificate to practice the profession of architecture in the state of New Jersey.

The statute creating this Board, and requiring a certificate to practice such profession, is entitled "An act to regulate the practice of architecture," and was approved March 24, 1902. P. L. p. 54. Provision is made for the examination of applicants for certificates, to whom, if the examination is satisfactory, such certificate shall be granted upon the payment of fees amounting to $20. It is also provided, in section 10 of the act, as follows: "Any person who shall at the time of the passage of this act be engaged in the practice of architecture in this state and who shall present to the State Board an affidavit to that effect or a certificate from a similarly constituted board of another state, and any person who is a member of the America Institute of Architects shall be entitled to receive such certificate upon the payment to the said board of a regular fee of five dollars.” It is not disputed but that the prosecutor made his application under the provision here quoted, as one engaged in the practice of architecture in this state when the act was passed, in accordance with the

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