47 Mo. 239 | Mo. | 1871
delivered the opinion of the court.
There are no objections urged here against the instructions given by the court below, and an inspection of the record has led us to the conclusion that there are but two questions requiring any special consideration. The first is the nature of the petition and the sufficiency of the verdict; and the second is whether the declarations of Brownell, just previous to his death and shortly, after the accident happened, were admissible in evidence.
The suit was commenced in the Circuit Court against the defendant for damages for the death of the plaintiff’s husband. The petition contains two counts. The first, is based upon the second section of the damage act, charging that Charles F. Brownell, the husband, through the negligence, unskillfulness, and criminal- intent of the officers, agents, servants, and employees of. defendant,-whilst running and- conducting a certain locomotive and train of oars belonging to defendant, was violently thrown, with said locomotive' and train of cars, from the railroad track off defendant' and instantly killed, and asks damages to the amount of $5,000. The second count is based -upon section 3 of the same act, and charges that by reason of the neglect and default of the defendant in not providing and using a safe and secure locomotive and headlight, in not providing competent and reliable switchmen, etc., the said husband was violently thrown, with said locomotive, from the railroad track and instantly killed, and asks judgment for $5,000. The answer was- simply .a denial of- the matters set forth in the petition-. The - cause was tried- before a jury, who, after hearing -the evidence, returned a general verdict in favor of the plaintiff for $4,500. ■ Upon- this verdict the court entered -up judgment, and the defendant appealed.
It is conceded that there might be a cause of action based on the second section of the act concerning damages, and a different cause founded on the third section, but this certainly could not be done in the same petition and against the same party. Th'e second section applies where the injury is occasioned indirectly by the corporation or owner through the negligence, unskillfulness, or criminal intent of the officers or employees ; the third section, where the injury is committed directly by the wrongful act, neglect .or default of another. To constitute.two causes of action there must be two subjects of complaint. But in the present case there is but. one injury, one subject-matter of complaint — the killing of the plaintiff’s husband. There being but one cause of action, there could be only one assessment of damages. There could not be a verdict for ' causing the death one way, and another verdict for causing the death in a different way. The law declares that if the injury is caused under the circumstances mentioned in one section, the damages shall be for a fixed amount; and if under the circumstances mentioned in another section, the damages shall not exceed a certain amount. It is for the jury to determine from the evidence whether the injury was caused and the death
The next question is in reference to the admission of the declaration of Brownell. The accident happened in consequence of a switch being left open on the defendant’s track. There is no dispute or controversy about the fact that the switch was left open. Immediately after the accident, when Brownell was restored to consciousness, and just before he died, he said, * * —“if it had not been for that man who left the switch open.” This was objected to, but the objection was overruled and the testimony admitted. As a dying declaration it was clearly inadmissible, for the modern decisions clearly establish the doctrine that the rule permitting dying declarations to be given in evidence applies exclusively to criminal prosecutions for felonious homicides, and has no reference to civil cases. But every declaration of a deceased person is not to be rejected upon this principle. Where a declaration is made by a deceased person cotemporaneously, or nearly so, with a main event, by whose consequence it is alleged he died, as to the cause of that event, though generally the declarations must be cotemporaneous with the event, yet where there are any connecting circumstances, they may, even when made some time afterward, form a part of the whole res gestee. (Insurance Co. v. Moseley, 8 Wall. 397.)
In The Commonwealth v. Pike, 3 Cush. 181, the indictment was for manslaughter; the defendant was charged with killing his wife. It appeared that the deceased ran up stairs from her own room in the night, bleeding and crying “ murder!” Another woman, into whose room she was admitted, went, at her request, for a physician. A third person who heard her cries went for a watchman, and, on his return, proceeded to the room where she
The Insurance Company v. Moseley, supra, was an action upon a policy of insurance. The question wms as to whether the deceased Moseley came to his death by an accident inflicting personal injury, or whether he died of disease. To show that his death was caused by an injury received in consequence of an accident, his wife and son were called and testified that he had left his bed in the night, and that when he came back he .said that he had fallen down stairs, and complained of being hurt. He died in a short time thereafter, and his death was believed -to be the result of the injuries he received when falling. ' Upon an extended review of the authorities, the Supreme Court of the United States held that although the statements of Moseley were not admissible in evidence as dying declarations, yet they were properly receivable aé part of the res gestae. Judge Swayne, in his opinion, says : “In the complexity of human affairs, what is done and what is said are often so related that neither can be detached without leaving the residue fragmentary and distorted. There may be fraud and falsehood as to both; but there is no ground of objection to one that does not exist equally to the other. To reject the verbal fact would not unfrequently have the same effect as to strike out the controlling member from a
The declaration of Brownell, in reference to the switch, grew directly out of and was made immediately after the happening of the fact. No one would hesitate to act on such evidence in his own concerns. It was so intimately connected that it made a part of the transaction itself, and, I think, clearly came within the doctrine of res gestae. In this view of the case I am of the opinion that the judgment should be affirmed.