Central of Georgia Railway Co. v. Brinson

18 Ga. App. 113 | Ga. Ct. App. | 1916

Dissenting Opinion

Broyles, J.,

dissenting. I think the court erred in permitting, over timely objection by the defendant, certain witnesses to testify as to statements made by the engineer and the conductor of the defendant company as to the circumstances under which the deceased was killed. These alleged statements were made some time after the homicide (how long after is not disclosed by the record), and were not made at the scene of the catastrophe, but were made in the town of Millen, some distance away, where the deceased was carried after he was struck by the engine. In my opinion these alleged statements, under the facts of the case, were not part of the res gestse, but were hearsay and inadmissible. With this illegal testimony stricken, in my opinion the evidence did not authorize a recovery for the plaintiff, and a new trial should have been granted. Moreover, I think there were errors in the charge of the court which alone required the grant of a new trial.

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Lead Opinion

Russell, C. J.

Perhaps it is unnecessary to discuss the rulings stated in the headnotes, and yet I think it proper to state that to my mind the statements of the engineer and the conductor, referred to in the fourth headnote, to which objection was offered upon the ground that they were hearsay, were properly admitted as part of the res gestae of the homicide; and it is upon this ground that I prefer to place my concurrence in the ruling thereon, rather than to rest it solely upon the reason stated in the headnote. I agree to the correctness of the rule stated by learned counsel for the plaintiff in error, that a principal is not bound by the admission of his agents, as such, as to matters outside the scope of the agent’s authority. But the principle of that rule has no application where the statements are those of an eye-witness (whether he happens to be an agent or not) made at such time and under such circumstances as to preclude all suspicion of device or afterthought. In the first place, the trial judge only determines whether particular statements are apparently so intimately connected with the transaction under investigation as to make them prima facie a part of the res geste. And though the court is thus in a sense, as always, the judge of the competency of the testimony, the jury at last determines whether the testimony admitted as part of the res geste is or is not of probative value, according as they may determine whether it was affected by device or afterthought. It is not the lapse of any period of time or the marking of any particular distance that determines whether testimony is legitimately within the res geste, and so it seems to me that the statements of the agents of the company by whose locomotive the deceased had been killed, who themselves were in charge of the train that killed him, made within a mile of the scene of the tragedy, and while the body of the deceased was still upon the ear where they had placed it as they proceeded on their way to the station, were properly admitted by the court as prima facie a part of res geste of the homicide.

Judgment affirmed.

Broyles, J., dissents.