Perkins v. Concord Railroad , 44 N.H. 223 ( 1860 )

Nesmith, J.

1. The first exception taken by the defendants was to the ruling of the court, admitting the evidence of witnesses, other than physicians, to show that the plaintiff, at various times after the accident, complained to them of injuries in his hip and lungs. The representations made by a sick person of the true nature, symptoms and effects of the malady under which he is laboring at the time, are received as original evidence. If made to a medical attendant they are of greater weight as evidence, but if made to any other person they ai’e not on that account rejected. .1 Greenl. Ev., sec. 101, p. 142; 1 Phill. Ev. 191; Avison v. Kinnard, 6 East 188; Bacon v. Charlton, 7 Cush. 581; Howe v. Plainfield, 41 N. H. 135.

2. The second exception was to the admission of the supposititious statement to the medical expert, and to his answer, or opinion thereon. A question similar to this under consideration, in substance, was allowed to be put, and the answer thereto was received in the case of Spear v. Richardson, 37 N. H. 21. Such evideuce wTas adjudged to be properly received in that ease, and for the reasons there assigned we think the question was properly put and answered in this case, as illustrative of the case on trial.

3. The defendants also, excepted to the admission of testimony offered by the plaintiff, tending to show that the defendants, through their officers or agents, admitted their liability for damages in consequence of their negligence when the accident happened. On this point the general rule seems to be, that confidential overtures of pacification, or offers or propositions between litigating parties, expressly stated to be made confidentially, or without prejudice, are excluded as evidence on grounds of public policy. 1 Greenl. Ev., sec. 192; Jardine v. Sheridan, 2 C. & K. 24. But the admission of any independent fact is receivable, though made during a treaty of compromise. Murray v. Coster, 4 Cow. 635; Sanborn v. Neilson, 4 N. H. 501; Harrington v. Lincoln, 4 Gray 563; 1 Greenl. Ev., sec. 192, and note; Bartlett v. Hoyt, 33 N. H. 151. The liability to pay damages in consequence of the accident appears to have been the matter distinctly admitted to the witness, as stated by him in evidence. In order to exclude such distinct admissions of facts, says Greenleaf, in the same section, it must appear, either that they were expressly made without prejudice, or at least that they were made under the faith of a pending treaty, and into which the pai'ty might have been led by the confidence of a compromise taking place. But in this ease it does not appear that when the admission of the liability of the defendants was made they claimed or sought the protection of the aforesaid rule ; or that it was desired to be treated or considered as confidentially made to the witnesses. The party can ask no more of the court now than they asked for themselves when the statement of their liability was voluntarily made to the witness in pari materia.

The averments in the plaintiff’s declaration seem to us to be sufficiently broad to sustain proof of any actual injury that might be presumed to be received by the plaintiff, from the negligence or misconduct of the defendants. The declaration comes within the rule laid down in Corey v. Bath, 36 N. H. 530.

The exceptions of the defendants are, therefore, overruled, and there must be

Judgment on the verdict.