I am unable to agree entirely with the opinion of the majority of the court. By said opinion all the defendant's exceptions are overruled except its exceptions numbered 3, 11, 13, 14, 15, 16, 18, 19 and 20, which are thereby sustained. I dissent only as to the exceptions sustained.
The third exception is to the exclusion of the record of the Rhode Island Hospital. Upon the subject of said record, prior to the offer thereof in evidence, Dr. McAlilay testified that in June, 1912, Dr. Johnson was house surgeon. Dr. Peet was the second, and the witness the third man in the service. He said: "Well, the last six weeks of every service, that is of every houseman's term, which is three months, his junior writes the continued notes; the first six weeks of his own service the house surgeon writes them himself." He testified that this was Dr. Peet's duty during the early part of the period when the plaintiff was at the hospital, that Dr. Peet was then the junior house surgeon. That the records were in Dr. Peet's handwriting from June 15th to August 15th; that Dr. Peet was at Philadelphia, at the time of the trial. The question was then asked: "How are these records made up; what is the custom and rule of the hospital with reference to the making up of the records, doctor?" A. "The man who has charge of writing the name on the case is supposed to make notes on that case every three days, that is, the important things that have happened in the case, every three days and oftener if necessary." The question is then asked: "And then those noted are incorporated into the hospital record?" A. "Yes sir." Q. "Are those notes which he makes every three days in the usual course of his duty based upon his own observation or upon the observation of himself and others?" *Page 213 The witness: "I served three months as senior man on the nose and throat service and I had to make records every three days. I served nearly three months as house physician and I had to make notes every three days on every patient." The COURT: "Is your answer complete?" Witness: "No. I said that you made the notes from your own observation and the observation of your visiting man on the rounds and I said that was my experience and my experience is the custom of the hospital, that is, it is the custom there for every man to do the same thing." The record was then offered. It was ruled out and defendant's exception noted.
This record was offered for the purpose of showing unruly behavior on the part of the plaintiff and his disobedience of the orders of the surgeons and nurses as to keeping quiet and refraining from movements which would be likely to interfere with the proper adjustment and knitting together of the fractured bone. It also appears in evidence that some, if not all, of those who reported the plaintiff's condition and actions from time to time were called as witnesses at the trial and that therefore, as the plaintiff claims, the exclusion of the record did not in effect deprive the defendant of any useful or important testimony.
The objection of the plaintiff to the admission of the record made by Dr. Peet, as set forth in his brief, are (1) that there is nothing in the case to show that such record is required by law or ordinance; (2) that there is nothing to show that it was the duty of any particular person to keep such record; (3) that it was not a public record, but something that was kept simply for the convenience and assistance of attending doctors and nurses; (4) that the recording was not contemporaneous with the happening of the events recorded; (5) that some of the events recorded were not within the personal knowledge of the person recording them; and (6) that facts reported by others to Dr. Peet and by him recorded were capable of proof by those who reported them and who were, or might have been, called as witnesses on behalf of the defendant. *Page 214
It appears from the evidence that some of the facts recorded by Dr. Peet were not within his personal knowledge and the plaintiff claims that, it being impossible to separate the facts therein due to such personal knowledge from those received by reports from others, the record as a whole must be excluded.
Upon the question of knowledge on the part of the witness, it is said in Section 657 of Wigmore on Evidence: "Knowledge must be founded on personal observation by the senses, not on hearsay. The first corollary from the general principle of knowledge is that what the witness represents as his knowledge must be an impression derived from the exercise of his own senses, not from the reports of others, — in other words, must be founded on personal observation. This general rule, to which contrary instances can be only casual exceptions, has long been recognized as fundamental: Upon this principle, the testimony of one claiming to have knowledge has constantly been rejected, when it appeared that he had lacked personal observation."
Among the exceptional cases under this principle when knowledge founded on hearsay may suffice is that of testimony of deceased or absent persons under the hearsay exceptions. Upon this, Mr. Wigmore says, in Section 670: "Under the exceptions to the hearsay rule the testimony of the witness deceased or absent must equally be based on personal observation," and in Section 1424: "The hearsay rule is merely an additional test or safeguard to be applied to testimonial evidence otherwise admissible. The admission of hearsay statements by way of exception to the rule therefore presupposes that the assertor possessed the qualifications of a witness in regard to knowledge and the like. These qualifications are fundamental as rules of relevancy and can never be dispensed with. Thus these extra judicial statements may be inadmissible because of their failure to fulfills the ordinary rules about qualifications even though they meet the requirements of a hearsay exception." *Page 215
"Personal knowledge of entrant; entries by bookkeeper, etc., on report of salesman, teamster, etc. (1) There can be no doubt that the general principle of testimonial evidence (ante Section 657) should apply here as elsewhere, namely, that the person whose statement is received as testimony should speak from personal observation or knowledge. This principle has often been invoked in excluding entries made by persons who had no personal knowledge of the supposed facts recorded." . . .
"The use of a party's entries, like a that of all the hearsay exceptions, must be subject to the ordinary principles of testimonial qualifications (ante Section 1424). When the party is the entrant then he must have the elementary qualification, the personal knowledge of the transaction recorded (ante Section 657)." Id. Section 1530.
The admission of such records is discussed in Delaney v.Framingham Glass c., Power Co., 202 Mass. 359. At page 366, the court said: "So far as respects the admissibility of the records of the Carney Hospital Under St. 1905, c. 330, the same rule applies because these records also were made before it was passed. The defendant insists, however, that the records of this hospital are admissible under the common law. While it is true that the records were not made in accordance with a requirement of law and therefore were not legal records within the meaning of the rule that legal records or copies thereof are generally admissible, still it appears that they were made in the usual course of business by a person in the discharge of a duty, who appears not only as the maker of them, but as their custodian. If she had died and her handwriting had been proved, in the absence of any other testimony as to the manner in which they were made up, they would have been admissible. As in the case of Townsend v. Pepperell, 99 Mass. 40, it would have been assumed that the records were of facts known to her. The rule applicable to such records ordinarily is that the entries must be made by a person having personal knowledge of the truthfulness of the statements. This test has been *Page 216 applied by this court in the case of shop books offered to prove delivery of goods, and it has been held that where the clerk who made the entries had no knowledge of the facts the entries are not admissible, although the clerk testified that he correctly put down the information he received from the person by whom the delivery was said to be made." . . . "It is true that this rule has not been applied with the same strictness to other memoranda. But in substance the general principle is the same. In the leading case of Welsh v. Barrett, 15 Mass. 380, 386, in which a bank messenger's memorandum of a demand and notice made by him in the course of his duty was admitted upon proof of his handwriting, he being dead, the principle was stated in these words: `What a man has said when not under oath may not, in general, be given in evidence when he is dead; because his words may be misconstrued and misrecollected; as well as because it cannot be known that he was under any strong motive to declare the truth. Yet there are well known exceptions to this rule, as in questions concerning pedigree. But what a man has actually done and committed to writing, when under obligation to do the act, it being in the course of the business he has undertaken, and he being dead, there seems to be no danger in submitting to the consideration of the jury.' And the rule has been adhered to quite generally except where in the course of the business the clerk making the entry receives his information either orally or in writing from various persons whom he cannot expect to remember and whom it will be impracticable to call. To apply the rule in such case and to require the evidence of every person in the long line of persons who have had anything to do with the transaction recorded, would be practically impossible, and so as a practical necessity the record is admitted upon the oath of the recorder, if alive, or upon proof of handwriting if he be dead. It is probable that this exception has been carried farther elsewhere than in this State. For a general discussion of the subject see Wigmore on Evidence, Section 1530, and cases cited in the *Page 217 notes. In our own State this exception seems to have been recognized in Briggs v. Rafferty, 14 Gray, 525; Adams v.Coulliard, 102 Mass. 167.
"In the present case the records were produced by the witness Gabagan. It appeared that the records were made by her, and that she was the proper custodian of them. But it further appeared that she never had any personal knowledge of the facts stated therein; that she received slips of paper from Dr. Painter, the physician, and copied them into the record; and that was all she knew about them. The record was offered as evidence to show that the statements therein made were true. As handed to the witness by the physician they were simply statements of the physician as to what the patient had said to him, or as to the diagnosis made by the physician. The records were comparatively recent. It was not shown that the physician was not living and within the jurisdiction of the court. No necessity was shown, therefore, for the introduction of this hearsay testimony. For aught that appeared there was better evidence. Under these circumstances the reason upon which the general rule was based, namely, that the record should be a record of facts of which the writer had personal knowledge, should be applied. The case is not within the above-mentioned exception to the general rule."
The case at bar differs from the case last cited in that here the entrant was shown to be outside the jurisdiction of the court. It appears however that the testimony of those from whom the entrant received the information which he wrote down was available and that many, if not all, of said persons were called and testified. The defendant was therefore able to get the testimony of the original witnesses.
The majority opinion says: "We do not think that the plaintiff's claim in this regard is well founded. The exclusion of the record deprived the defendant of its force as corroborative of the testimony of the other witnesses, the record having been made long prior to the suit and without any reference to the plaintiff's claim." The defendant had *Page 218 the testimony of the declarants, which was the best evidence, and it is not entitled to corroborate the testimony of said witnesses by showing that they had, when not under oath, made the same statements as when under oath. After a witness had testified, I do not think that another witness would be permitted to corroborate his testimony by saying that the witness had previously made the same statement to him. Further, the judge, on the evidence submitted preparatory to the offer of the record. kept by the junior house surgeon, may properly have found that the record was imperfect or not properly kept. Upon such a finding it would be properly excluded. In my opinion there was no error in the exclusion of the record offered.
The defendant alleges error in the charge to the jury with reference to the conduct of the plaintiff in the hospital. The defendant requested the court to charge the jury upon this point as follows: "If defendant is liable in this case it is only for the natural consequences resulting from the collision. If the plaintiff unreasonably disobeyed the orders of the physicians or nurses in the hospital with regard to keeping quiet, and this failure produced more serious injury than would otherwise have resulted from the accident, the defendant is not responsible to the plaintiff for this aggravation of his injuries." This request was refused, the court charging the jury as follows:
"Now the first thing in that connection, and to my mind one of the most important things for you to decide is, is it established as an affirmative fact that the plaintiff's acts have caused an aggravation of the injury? I instruct you that unless you find on the evidence as an affirmative fact that the plaintiff by his acts has caused such aggravation of the injury, then you are to dismiss this claim from your consideration. It is not enough to decide that the plaintiff may have aggravated his condition; that would be pretty nearly the same as saying that the plaintiff's acts may not have aggravated his condition. It has got to be more than that; you have got to find as an affirmative fact before you *Page 219 make this allowance that he did aggravate his condition by his own act. The subject is one that I have not found easy to find definite authority on to satisfy my own mind in the time allowed during this trial, but I am going to give my construction of the law on it. I will put it in three paragraphs, so that if you wish to except to the reading of any, just note your exception.
"1st. The plaintiff's acts to have the effect of striking from your consideration any consequences of the injury must have been voluntarily and knowingly performed and performed with the knowledge or means of knowledge that such acts would necessarily or probably do him material harm.
"2nd. If the plaintiff did voluntarily and knowingly and with the knowledge that such acts would necessarily or probably do him material harm commit acts which materially aggravated the effects of his injury, he cannot recover for the aggravation to his injuries so caused by his own act; but this does not affect defendant's liability for damages caused by its wrongful act and for the necessary and proximate consequences of that act of the defendant.
"3rd. If the plaintiff's injury was aggravated by restlessness or acts done by him which were merely the necessary or proximate consequences of the original injury you will not because of such aggravation, lessen the damages required to compensate for the injury done him, but will consider the results of such aggravation as a part of the results of the original injury. If it is involuntary, if it is due to restlessness or any other act beyond the control of the plaintiff, or done without consciousness that it must or probably would hurt him, then it is to be disregarded."
The only criticism of this instruction by the majority opinion is of the words: "Now the first thing in that connection, and to my mind one of the most important things for you to decide is, is it established as an affirmative fact that the plaintiff's acts have caused an aggravation of the injury? I instruct you that unless you find on the evidence as an *Page 220 affirmative fact that the plaintiff by his acts has caused such injury, then you or to dismiss this claim from your consideration;" and later: "You have got to find as an affirmative fact before you make this allowance that he did aggravate his condition by his own act." The majority opinion says: "We think that the use of this language was unfortunate for the reason that the jury might naturally, and would be likely, to understand therefrom that without some positive proof that the rebellious acts of the plaintiff caused the failure to obtain the best result, they were to dismiss that subject from their consideration. The word affirmative, as used in that portion of the charge before referred to, describes something positive, something declaratory of what actually exists, something that is a fact."
The word is defined in Webster's New International Dictionary — "2. That affirms; asserting that the fact is so; declaratory of what exists; answering `yes' to a question, — opposed to negative; as an affirmative answer or vote."
The opinion then says: "The testimony of the physicians and surgeons is simply an expression of their opinion. This opinion is based first, upon the absence of other conditions which would militate against a good recovery and second, upon the probable effect of the movements and behavior of the plaintiff.
From the very nature of things it could not be a matter of positive proof, but only a matter of opinion. It was something, however, which was proper for the jury to consider. It was proper for them to consider it in determining whether or not the failure to obtain the best result was to some extent due to the unwarranted behavior of the plaintiff himself."
While it is true that the testimony of the physicians and surgeons is an expression of their opinion, such testimony must be based upon facts sufficient to justify such opinion, in order to affirmatively establish that which such opinion asserts to be true. "The absence of other conditions which would militate against a good recovery" would be a fact which, taken in connection with movements and behavior *Page 221 of the plaintiff shown by the evidence, would furnish a basis for an opinion by the physicians as to the probable effect of such movements and behavior of the plaintiff. The majority opinion says: "From the nature of things it could not be a matter of positive proof, but only a matter of opinion." While the testimony of the physician would consist in the statement of his opinion, including the grounds thereof, what is to be established as the result of the proof is not an opinion, but a fact. As the majority opinion says: "The word affirmative, as used in that portion of the charge before referred to, describes something positive, something declaratory of what actually exists, something that is a fact." That is an admirable definition of the word as used in the instruction, and its use was entirely proper. The judge did not err in this instruction. The foregoing discussion involves exceptions 11, 18, 19 and 20.
The defendant also excepted to the following portion of the charge of the court: "The case that I want to cite from isAngela v. Lewis, — and there the plaintiff's wife was driving a buggy between Fruit Hill and Centerdale. The findings of the court and jury showed that she kept to her right, did not get beyond the middle; that two wagons came to meet her, came towards her; the first one continued to keep to its right and went by safely. The defendant was in the second and as he came near the plaintiff's buggy he swung to the left to pass the wagon in front of him, and in so doing smashed into the plaintiff's buggy, and it was found and declared that Mrs. Angell, who was driving, could not reasonably do anything to prevent the accident. On that state of affairs the court used expressions that would be applicable to this case if this case happened on the supposition that I have named. And the case I think is pertinent in other respects. The evidence shows that the plaintiff's wife complied with this requirement on meeting the two teams and that she was in the act of passing them safely when the defendant suddenly pulled his team to the left and collided with hers. In thus taking the wrong side of the *Page 222 road the defendant took the risk of the consequences which might arise from his inability to get out of the way of another team approaching on the right side of the road and is responsible for injuries sustained by the latter while exercising ordinary care. In other words, one who violates the law of the road by driving on the wrong side assumes the risk of such an experiment and is required to use greater care than if he had kept on the right side of the road, and if a collision took place in such circumstances the presumption is against the party who is on the wrong side, and this —
"In another case cited by the Rhode Island Court these words are used: "It is legal negligence in anyone to occupy the half of the way appropriated by law to others having occasion to use it in travelling with teams and carriages and he is chargeable for any injury flowing exclusively from that cause.'
"`The plaintiff's wife had the right to presume that the driver of any team coming in the opposite direction would duly observe the law of the road as she herself was doing and hence she was not called upon to exercise that degree of care which devolved upon the defendant when taking the wrong side of the road.'
"Now you will remember the circumstances of the case in which that language was used. That was used with reference to the facts then before the court, that the plaintiff's wife, Mrs. Angell, was on and had kept on her side of the road and the collision was caused because the defendant left this right, drove over on his left and smashed it not the plaintiff's buggy; and it is to be remembered in considering the opinion there, the words of the opinion, that the opinion was used with reference to that state of facts."
The case of Angell v. Lewis, 20 R.I. 391, has never been overruled, doubted or distinguished in any way to diminish its authority. The doctrine therein laid down that one who violates the law of the road by driving on the wrong side assumes the risk of such experiment and is required to use greater care than if he had kept on the right side of the road, *Page 223 and if a collision took place in such circumstances the presumption is against the party who is on the wrong side of the road; and that quoted from the case therein cited: "It is legal negligence in anyone to occupy the half of the way appropriated by law to others having occasion to use it in travelling with teams and carriages and he is chargeable for any injury following exclusively from that cause" have been consistently followed in this State.
Angell v. Lewis was cited in Winter v. Harris,23 R.I. 47, in which case the court says: "The plaintiff showed no sufficient cause or excuse for being on the wrong side of the road at the time of the accident, and the injuries she complained of were attributable mainly, if not wholly, to her own failure to exercise due care; hence, under the circumstances of this case, we find not error in the charge of the justice, to which exception was taken;" also in Pick v. Thurston, 25 R.I. 36, where the court said: "As the plaintiff in the case at bar was violating the `law of the road' she must show some sufficient cause or excuse for being on the wrong side to enable her to attribute negligence to the defendant."
Many cases in other jurisdictions are in accord.
In Brember v. Jones, N.H. 1893, 26 L.R.A. 408, the court says: "Ordinarily, if one traveller, in meeting another, be found upon the half of the way appointed to him by the statute, travelling with ordinary care and prudence, and he sustain an injury by a collision with the vehicle of another, who is upon that part of the way to which he has not the statutory right, the individual who has thus sustained the injury may have redress by action against him who was thus on the part of the way to which the statute did not give him the right. The traveller who thus travels prudently and carefully upon the half of the way assigned to him, will ordinarily pass at the hazard and risk of him who trenches upon his rights in the manner already stated. . . . It is legal negligence in any one thus to occupy the half of the way appropriated by law to others having occasion to use *Page 224 it in travelling with teams and carriages, and he is chargeable for any injury flowing exclusively from that cause."
In Reipe v. Elting, Iowa, 1893, 26 L.R.A. 769, the court said: "The general rule seems to be that, where a collision occurs between the horse or vehicle of a person on the wrong side of the road and that of a person coming towards him, the presumption is that it was caused by the negligence of the person who was on the wrong side of the road, but that his presence on that side may be explained and justified, (2 Shearm. Redf. Neg. § 650; Elliott, Roads Streets, 3d Ed., § 1082).
In Foote v. American Product Company, 195 Pa. St., 1900, p. 190, the court said: "In passing north along the east side of Seventeenth street, the boy was where he had a right to be, and where, if travelling on the street in that direction, the law of the road, as well as the city ordinance, required him to be. When the collision occurred, the driver was turning his wagon around the southeast corner of Spruce and Seventeenth streets, and the plaintiffs claim that it was with the intention of going south on the east side of the street. When no one was approaching with a desire to pass him with a vehicle the driver had the right to use any part of the street not occupied by another; yet when he turned abruptly on Seventeenth street, in the manner shown by the testimony, he was taking the chance of a collision with other travellers going north on that street, whose rights at that place were superior to his."
Louis Perlstein v. American Express Co., 177 Mass. 530; The court, KNOWLTON, J., said: "The plaintiff introduced testimony that he himself was driving on the right hand side of Harrison Avenue, close to the sidewalk, and it tended to show that he was in the exercise of due care. The driver of the other team was driving `very fast' in the opposite direction, and collided with the plaintiff. This was evidence that he was acting in violation of the statute which requires persons meeting each other as these persons were, to drive `to the right of the middle of the travelled part' of the road, and *Page 225 unexplained it indicated negligence. Reynolds v. Hanrahan, 100 Mass; 313. Young v. South Boston Ice Co, 150 Mass. 527.Randolph v. O'Riordon, 155 Mass. 331."
"One who violates the law of the road by driving on the wrong side of the way assumes the risk of all such experiments and must use greater care than if he keeps upon the right side of the road. If a collision takes place the presumption is generally against the party on the wrong side." Elliott, Roads and Streets, Section 1082.
In the charge it does not clearly appear whether the Judge read from Angell v. Lewis, or not. In his statement of the facts, he does not follow the language literally, while he does so in substance. The instructions in matters of law are given as in the report of said case. I see no reason for criticism in his use of said case in the charge and in my opinion there was no error in such use. As to the suggestion in the majority opinion that the language of Angell v. Lewis must be considered in connection with the facts of that case in order to get at its intended meaning, the case is not peculiar in that regard. No two cases are exactly alike in all their circumstances. The fact however that the collision in that case occurred between five and six o'clock P.M. on January 3, 1897, while that in this case occurred about six o'clock in the afternoon on June 14, 1912, or the fact that in that case the defendant admitted that when he pulled out to pass the teams ahead of him he was not thinking that some one might be coming towards him on the other side of the road, while in this case the defendant's servant sounded his horn, shifted his speed from first to second, and started to pass on the left of the wagon in front of him, and while thus attempting to pass the team in front a collision took place between the truck and the plaintiff who was riding a bicycle in the opposite direction, would not constitute such differences in the facts of the two cases as render the law of the former case inapplicable to the case at bar.
The law of the road is now given in Gen. Laws, 1909, cap. 87 §§ 1 and 2, as follows: "Section 1. Every person travelling with any carriage or other vehicle, who shall meet any other *Page 226 person so travelling on any highway or bridge, shall seasonably drive his carriage or vehicle to the right of the center of the travelled part of the road, so as to enable such person to pass with his carriage or vehicle without interference or interruption. Every person travelling with any carriage or other vehicle who shall overtake any other person so travelling on any highway or bridge shall pass on the left side thereof, and the person so overtaken shall as soon as practicable drive to the right so as to allow free passage on the left.
"Sec. 2. Every person who shall wilfully violate the provisions of the preceding section shall be fined five dollars, and shall be liable for all damages sustained in consequence of any neglect to comply with said provisions."
Marsh v. Boyden, 33 R.I. 519, cited in the majority opinion is not in point. In that case, at p. 523, the court said: "If the rule of the road had any application at all it must have been with reference to the street car or the people thereon, but the plaintiff at the time of the accident had ceased to be a passenger on the car and there was no interference with the car or collision in which it and the automobile of the defendant were involved. The plaintiff was not injured in consequence of the neglect of any duty which the defendant owed to the car or its occupants. Of course the defendant was bound to take notice of the fact that a street car had stopped to allow passengers to alight and to so conduct is vehicle as not to run down persons who had so alighted, but that is not a duty imposed by the statutes herein before referred to as prescribing the rule of the road." This language preceeds that quoted in the majority opinion.
The foregoing discussion involves exceptions 13, 14, 15, 16, 17.
All of the defendant's exceptions should be overruled and the case should be remitted to the Superior Court for the entry of judgment for the plaintiff upon the verdict.
SWEETLAND, J., concurs in opinion of JOHNSON, C.J.