165 Ill. 438 | Ill. | 1897
delivered the opinion of the court:
The principal error assigned by appellant, and relied on as a reason for reversal of this judgment, is on the admission of improper evidence by the trial court. Over the objection of appellant a witness, Mrs. Laura Stangnan, was permitted to testify for appellee that she was at the house of Mrs. Johnson between seven and eight o’clock on the morning in question, and that Mrs. Johnson was getting ready to go to the city to get a dress, and that she said she was going on the nine o’clock train because that would take her near to Siegel & Cooper’s. At the time this was said she was getting her children ready to go to school. The sole object of this evidence was to show that the decedent intended to become a passenger on appellant’s train. This became a material fact in the case, for the reason that if Mrs. Johnson sustained the relation of a passenger at the time of the accident, then appellant was bound to exercise the highest reasonable and practicable degree of care for her safety. (Chicago and Alton Railroad Co. v. Pillsbury, 123 Ill. 9; Chicago and Alton Railroad Co. v. Arnol, 144 id. 261.) If she did not sustain the relation of a passenger or intended passenger, then only ordinary care was required of appellant. It thus became an important question of fact to be determined whether the decedent sustained the relation of an intended passenger on appellant’s train.
The evidence of Mrs. Stangnan, above cited, as to the acts and declarations of decedent an hour before the accident, was practically all that was relied on by appellee to show her relation as a passenger. To controvert this, it was shown by the only persons in charge of appellant’s ticket office that she purchased no ticket that morning, and after her death those who took immediate charge of her effects found no ticket and only a few pennies in money in her purse; also, that during the thirty minutes she had been at appellant’s station one regular passenger train had departed for Chicago and one in the other direction. The question for consideration is, whether this evidence was part of the res gestas. If so, it was properly admitted by the trial court, and if not, it was error.
Courts have not always found it without some difficulty of determination as to whether or not particular acts or declarations were so nearly contemporaneous or coincident with the act itself as to become part of the res gestas. The rule is thus laid down by G-reenleaf: “Declarations, to become a part of the res gestee, must have been made at the time of the act done which they are supposed to characterize, and have been well calculated to unfold the nature and quality of the facts which they were intended to explain, and so to harmonize with them as obviously to constitute one transaction.” Greenleaf on Evidence, sec. 108, note 1. »
One of the cases relied on to support the contention of appellee that this evidence was admissible as part of the res gestae is Lake Shore and Michigan Southern Railway Co. v. Herrick, 49 Ohio St. 25. In that case a witness was permitted to testify that on the morning defendant in error left his hotel he said to witness, who was a clerk, that he was going to Collins. He was injured while on his way to the train that ran to Collins. In its opinion the court says: “Was his declaration that he was going to Collins competent evidence of that fact? That depends on whether the declaration was contemporaneous with and explanatory of the act of departure. One departing from home may have in view any conceivable place or any conceivable purpose as his destination or object. The act of departure is thus in itself of the most ambiguous character. It does not afford the slightest clue to the object of the journey. It is natural and usual, according to the natural experience of mankind, that the. party should say something respecting his departure of an explanatory character. Declarations thus made are part of the act itself.”
Where the evidence shows the party is about to start on a journey, from common experience we know it is usual- and natural that something is said by the party relating to the departure, and of a character indicative or explanatory. For such declarations to be admissible in evidence as part of the res gestae they must be made in connection with an act proven, as in the case above cited. The rule is, that the res gestae generally remains with the locus in quo, and it does not follow the parties after the principal act is completed. The authorities to which we are cited in argument are principally those in which the declarations sought to be considered were made after the act or injury with which they are attempted to be connected. The rule is, in determining whether or not declarations made before or after the principal act are to be considered as part of the res gestee, lapse of time is taken into consideration, and such declarations made after the principal act will not be considered as part of the res gestee if there is any change from the place of occurrence of the principal act or in the condition of the parties. The evident reason of the rule is, that in such event an opportunity for fabrication might be given or testimony might be manufactured by interested parties. Whether or not such act or declarations will be so considered must depend upon the circumstances of each case. The real test is, whether the principal act and the declarations sought to be considered as part of the res gestee are separated from each other by such a lapse of time as to render it probable that the parties are speaking from designing purposes rather than instinctive impulse. It can be stated as the general rule, that anything said or done before the principal act occurred or was within the contemplation of the parties cannot be regarded as part of the res gestee, although only separated by the least possible span of time, unless it tends to explain and unfold the principal act by the undesigned act or declaration of the party, for the reason that such declaration or act could not be said to throw any light upon the motives of the parties. A person desiring to commit suicide might, an hour before the act, declare that he intended to become a passenger upon a train, when, as a matter of fact, no such intention existed in his mind, but the only intention there existing might be to go to a passenger station where trains were passing, for the purpose of taking his own life. Such declaration, therefore, made an hour or any other space of time previous to the act of departure, itself would afford no light upon his intention, and could not be considered as evidence unless immediately connected with the act of departure. In the case of Lake Shore and Michigan Southern Railway Co. v. Herrick, supra, the declaration was connected with the act of leaving the hotel. The declaration was not made in connection with any preparation for a space of time previous to the act of departure for the train, but was immediately connected with the act of departure itself. In the case at bar, at the time the declarations which were sought to be admitted as evidence were made, the decedent was getting her children ready for school and performing her ordinary household duties, and while so doing she declared an intention of going to the city of Chicago. This declaration was not connected with the act of departure itself, and was not admissible. To admit such declaration as constituting a part of the res gestos would, on the same principle, hold admissible a like declaration made the day or a week before. Such declaration, therefore, made to the witness Stangnan, was not competent as part of the res gestae, and it was error to admit it.
There is another error in this record also which must cause a reversal of this judgment. At the close of plaintiff’s evidence a motion was made by defendant below to withdraw the case from the jury and instruct the jury to find for the defendant. The trial court took the motion under advisement until the following day and then refused it, to which appellant excepted. Two elements necessary for appellee to show in this case were, negligence on the part of appellant as charged in the declaration and which caused the death of appellee’s intestate, and also that the deceased was herself, at the time of the accident, in the exercise of due care and caution for her own safety. ■ If both these elements were not established the above motion made by defendant should have been allowed, and it was error to refuse it. In our view of this case neither of these important and necessary elements was established, nor was there evidence tending to prove either proposition. Before the freight train in question was moved the proper signal was given by the conductor in charge, who stood near the decedent and saw that the track was open; a whistle was sounded and a bell rung; a brakeman was stationed on the end of a box car nearest where danger might be expected, if any, and the train moved at a slow speed,—perhaps no faster than a man ordinarily walks. The servants of appellant had no reason to suppose- that when the train had approached within a few feet of this woman she would step upon the track in front of it. We know of nothing which appellant or its servants could have done, within reason, the omission of which shows negligence on their' part. The decedent, on the contrary, was guilty of such negligence as contributed to her death. She had been at this station thirty minutes, where this train had been switching back and forth. The train had moved three hundred feet approaching the platform, and while part of this distance was on the cross-over track, at least one hundred feet was on the track where she finally stepped. The morning was clear and bright, and no objects intervened to prevent her seeing so large an object as a slowly and steadily approaching box car. Under all the circumstances she appeared to act in a manner so negligent as to indicate an utter disregard for her own safety, instead of exercising that due care and caution which would entitle appellee to recover. The motion made to instruct the jury to find for defendant should have been allowed.
For the errors indicated in this opinion the judgment is reversed and the cause remanded to the circuit court of Cook county.
Reversed and remanded.
Mr. Justice Carter: I do not concur in the conclusion reached by the court in this case.