
    Willard Moody vs. Henry L. Sabin.
    Where exceptions are taken to the admission of evidence, on the ground that it u irrelevant, if there be any one point, consistent with the facts in the bill of excep tions, to which it is applicable, the exceptions will be overruled.
    
      In an action against a surgeon, for negligently treating a fractured thigh bone, the defendant, in support of his allegation that he had placed the fractured limb upon a double inclined plane, at an angle of 45 degrees, or thereabouts, introduced a witness who testified to statements made in the presence of the plaintiif, by the defendant to the witness, at the time when the defendant brought the machine to the plaintiff’s house, about the principle upon which the machine operated, and how it might be made a double inclined plane of any angle, by means of .a screw. The evidence was admitted, and, on .exceptions, the court held that, both as res gestee and as a statement made in presence of the party, they could not say that it was erroneously admitted.
    This was an action on the case, brought in the court of common pleas, against a physician and surgeon, for so negligently treating the fractured thigh bone of the plaintiff that the plaintiff was rendered a cripple.
    In the course of the trial, the defendant contended, but it was denied by the plaintiff, that the defendant had placed the fractured limb upon a double inclined plane, at an angle of 45 degrees, or thereabouts. For the purpose of proving this point, the defendant offered the testimony of a witness who was present at the house of the plaintiff when the defendant, brought there the machine, which was afterwards, on a subsequent day, placed upon the fractured limb, and offered to prove by such witness, what statements the defendant himself made to the witness at that time, in the presence of the plaintiff, about the principle upon which the machine operated, and how it might be made a double inclined plane of any angle, by means of a screw. It did not appear that the plaintiff had any knowledge of the method of treating such a fracture, or the proper instrument to be used, nor that he made any reply to the statements of the defendant, although the witness said they were made in the plaintiff’s hearing. It appeared that, at the time these statements were made, the plaintiff lay upon his bed with his thigh broken, and so lay eight days, suffering also under other severe injuries.
    The plaintiff objected to the admission of this evidence, but the presiding judge, Mellen, J., overruled the objection, and admitted the evidence. The jury having found a verdict for the defendant, the plaintiff alleged exceptions.
    
      L. C. Thayer, for the plaintiff,
    to the point that the evidence admitted should have been excluded, as being the statement of the party himself in whose behalf it was offered, not accompanied by any assent of the plaintiff, and being no part of the res gestee, cited Commonwealth v. Kenney, 12 Met. 235; 1 Green]. Ev. §§ 197 — 199; Mattocks v. Lyman, 16 Yt. 113; Ca/rter v. Gregory, 8 Pick. 165.
    
      J. Rockwell, for the defendant.
    1. The evidence was admissible, as part of the res gesta. 1 Greenl. Ev. 120; 1 Stark. Ev. 39, 47-49, 52; Rigby v. Stedmcm, 1 Esp. R. 328; Price v. Earl of Torrington, 1 Salk. 285; Bateman v. Bailey, 5 T. R. 512; Aveson v. Lord Kin-naird, 6 East, 188; Phelps v. Foot, 1 Conn. 387; Enos v. Tuttle, 3 Conn. 247; Pool v. Bridges, 4 Pick. 378; Woods v. Clark, 24 Pick. 35; Robinson v. Wadsworth, 8 Met. 67; Goodhue v. Hitchcock, 8 Met. 62; Salisbury v. Gourgas, 10 Met. 442.
    2. What has been said by one party in the presence of the other, may be given in evidence. Swift’s Ev. 127.
    3. The evidence was admissible, as an admission of the plaintiff that the defendant procured the instrument, to use it as a double inclined plane. 1 Stark. Ev. 50.
   By the CouRT.

Exceptions are often so brief, that it is difficult to judge of the competency or incompetency of particular evidence offered and objected to. It depends much on the preceding evidence, and the posture of the cause at the time it is offered.

It is often better understood by the judge who has the whole case before him, than it can by the court afterward. One rule is well settled. When the objection is to the admission of evidence, and the objection is that it is irrelevant, if there be any one point, consistent with the facts in the bill of exceptions, to which it is applicable, the court cannot say that it ought not to have been admitted. In the present case, the statement objected to was in fact made in presence of the party, in regard to the construction and use of an instrument, which he had then brought to be applied to the plaintiff’s limb, the principle of which was one of the subjects of inquiry before the jury. Both as res gesta and as a statement in presence of the party, although we may not have been in a condition to understand it fully, we cannot say that there was error in admitting it. Exceptions overruled.  