A party that moves and urges the reference of his cause, under Laws of 1874, c. 97, s. 13, accepts all of the provisions of said section, and waives his right to object to the unconstitutionality of that part thereof that makes the referee's report evidence upon a jury trial, and such acceptance may be proved by parol evidence.
When an irregularity exists in the running of railroad trains, and a collision occurs, and the negligence of the engineer and train-dispatcher is alleged as causing it, the telegraphic correspondence between the two, upon the subject, just prior to the collision, is competent as a part of the res gestae, and if not in writing may be proved by a listener.
If the engineer is injured in the collision and sues the railroad, it is not a bar to the action that the telegrams sent by him were not reduced to writing, as required by, the printed rules of the road, of which had knowledge, but this is evidence for the jury upon the question of contributory negligence; and, in reply, it is competent for him to prove a usage of the road to do as he did.
BINGHAM, J.
The referee's report was allowed to go to the jury as evidence. The effect of the record evidence of the second term was, that the cause was referred, under Laws of 1874, c. 97, s. 13, without the consent of the parties. The parol evidence relating to that term proved that the defendants moved and urged the reference of this cause under said statute, without reservation or exception, and that the plaintiff opposed the reference. The plaintiff offered the report as evidence under the statute, and the defendants objected, and claimed that so much of the statute as made the report of the referees evidence before the jury was unconstitutional. King v. Hopkins, 57 N.H. 334.
The plaintiff replied that the defendants had waived their right to make this objection, and the question is, whether they, by their acts in electing and successfully persisting in their election to try this case according to the provisions of the statute without reservation, assented to them, and waived their right to deny their constitutionality. If they did, the report was competent evidence as against them, and the preliminary inquiry of the court to ascertain the fact was properly made, as the acceptance of the provision of the statute by the defendants may be shown by their acts under the statute, and need not be in writing. Houston v. Wheeler, 52 N.Y. 641. The question of waiver, now raised in this case, was substantially decided in Parker v. Burns, 57 N.H. 602, Which was a case referred by order of court upon the plaintiff's motion; and the court held that the plaintiff, by moving to refer, accepted the statute with all of its provisions, and waived his right to object to the constitutionality of the law making the report evidence in case of a jury trial. We have examined the authorities, both in and out of the state, bearing upon this question, and have no reason to doubt the correctness of the conclusion of the court in Parker v. Burns, as above stated. We think that it is sustained by both reason and authority. Brewster v. Edgerly, 13 N.H. 275, 282; Lisbon v. Bath, 23 N.H. 1, 9; Hills v. Smith, 28 N.H. 369, 377; King v. Hutchins, 26 N.H. 139; Patrick v. Cowles, 45 N.H. 553, 555; Price v. Dearborn, 34 N.H. 481; State v. Ober, 52 N.H. 459; Burnham v. Goffstown, 50 N.H. 560; King v. Hopkins, 57 N.H. 357; Perkins v. Scott, id. 55; Marsh v. Brown, id. 173; Houston v. Wheeler, before cited; Vose v. Cockcroft, 44 N.Y. 415; Lee v. Tillotson, 24 Wend. 337; People v. Murray, 5 Hill 468; Van Hook v. Whitlock, 26 Wend. 43; Plummer v. Meserve, 54 N.H. 166; Jarvis v. Mitchell, 99 Mass. 530; Bouv. Law Dic., Waiver.
The telegrams between White and wing, as to the irregularity and the running of the trains on account of the same, were material and is competent evidence. The exercise of due care by the plaintiff, and the negligence of wing, were both questions of fact for the jury; and the telegrams must have been the framework of this branch of the case. They were a part of the res gestae.
The telegrams were not reduced to writing, and could be proved by any one that heard them and knew their contents. They were not unlike a conversation between two persons, which can be proved as well by a listener as a participant. The fact that the plaintiff did not send his telegrams in the manner prescribed by the rules of the corporation was not a legal bar to his right to recover, but was evidence for the jury to consider in determining the question of contributory negligence. As bearing upon the same question, it was proper for the plaintiff to show the usage of the road in such cases. Hills v. Hoitt, 18 N.H. 603. The telegrams containing truthful information, were received and acted upon by wing without objection, and the irregularity now insisted upon should be treated as waived. Ins. Co. v. Keyser, 32 N.H. 313; Campbell v. Ins. Co., 37 N.H. 35, 48.
Judgment on the verdict.
DOE, C. J., did not sit.