Evanston v. Gunn ( 1879 )

99 U.S. 660 (____)

EVANSTON
v.
GUNN.

Supreme Court of United States.

Mr. George O. Ide for the plaintiff in error.

Mr. Wirt Dexter, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

The admission in evidence of a record kept by a person employed by the United States Signal Service at Chicago was objected to at the trial, not because it had not been properly made, identified, and proved, but for the alleged reason that "there was no law authorizing such records to be used in evidence, and because it was not competent testimony." The defendants having thus specified their objection, it must be considered that all others were waived, or that there was no ground upon which others could stand, Berks & Dauphin Turnpike Co. v. Myers, 6 Serg. & R. (Pa.) 12; Chicago & Alton Railroad Co. v. Morgan, 69 Ill. 492. We have then only to consider the objections that were made, — the only ones that appear in the bill of exceptions, — and they present the question whether the record, conceding it to be properly proved, was competent evidence. It may be admitted there is no statute expressly authorizing the admission of such a record, as proof of the facts stated in it, but many records are properly admitted without the aid of any statute. The inquiry to be made is, what is the character of the instrument? The record admitted in this case was not a private entry or memorandum. It had been kept by a person whose public duty it was to record truly the facts stated in it. Sects. 221 and 222 of the Revised Statutes require meteorological observations to be taken at the military stations in the interior of the continent and at other points in the States and Territories, for giving notice of the approach and force of storms. The Secretary of War is also required to provide, in the system of observations and reports in charge of the chief signal officer of the army, for such stations, reports, and signals as may be found necessary for the benefit of agriculture and commercial interests. Under these acts a system has been established, and records are kept at the stations designated, of which Chicago is one. Extreme accuracy in all such observations and in recording them is demanded by the rules of the Signal Service, and it is indispensable, in order that they may answer the purposes for which they are required. They are, as we have seen, of a public character, kept for public purposes, and so immediately before the eyes of the community that inaccuracies, if they should exist, could hardly escape exposure. They come, therefore, within the rule which admits in evidence "official registers or records kept by persons in public office in which they required, either by statute or by the nature of their office, to write down particular transactions occurring in the course of their public duties or under their personal observation." Taylor, Evid., sect. 1429; 1 Greenl. Evid., sect. 483. To entitle them to admission it is not necessary that a statute requires them to be kept. It is sufficient that they are kept in the discharge of a public duty. 1 Greenl. Evid., sect. 496. Nor need they be kept by a public officer himself, if the entries are made under his direction by a person authorized by him. Galt v. Galloway, 4 Pet. 332. It is hardly necessary to refer to judicial decisions illustrating the rule. They are numerous. A few may be mentioned. De Armond v. Nesmith, 32 Mich. 231; Gurney v. House, 9 Gray (Mass.), 404; The Catharine Maria, Law Rep. 1 Ad. & Ec. 53; Clicquot's Champagne, 3 Wall. 114. We think, therefore, that there was no error in admitting the record kept by the person employed for the purpose by the United States Signal Service.

The exceptions to the charge, though numerous, in our opinion point to no error. Without going through in detail the statute under which the village was organized and the powers conferred upon it, it is enough to say that it had ample authority to keep the streets and walks in a safe condition at all times for passage. And the power carried with it the duty of exercising it. Nothing could have been a more palpable violation of that duty than permitting the continuance of such a trap as that into which the plaintiff below fell. And this duty was not suspended during the changes from a township to a village organization. The identity of the corporation was not destroyed by the change, and its obligations in regard to the streets, avenues, sidewalks, drains, &c., continued in full force. The fact that the board of trustees of the village were not authorized to make their annual appropriation for the year in which the plaintiff's injury occurred, if it was a fact, and that they, as well as every department and officer of the corporation, were prohibited by law from adding to the corporate expenditures in any one year any thing above the amount provided for in the annual appropriation bill for that year, is quite immaterial. The power to borrow money sufficient to provide for making any improvements, the necessity for which was caused by any casualty or accident happening after the annual appropriation, was expressly given. Besides, the village succeeded to all the property and funds of the township, as well as to its liabilities. It was organized in October, 1872, and the accident to the plaintiff occurred on the 22d of April, 1873, six months afterwards.

We see no error in the instruction given to the jury respecting contributory negligence of the plaintiff. It was full, — all the case demanded, — and strictly accurate. Sentences may, it is true, be extracted from the charge, which if read apart from their connection, need qualification. But the qualifications were given in the context, and the jury could not possibly have been misled. Upon the whole, we think that the case was submitted in a manner of which there is no just cause of complaint.

Judgment affirmed.