Chicago, M. & St. P. Ry. Co. v. Chamberlain

253 F. 429 | 9th Cir. | 1918

MORROW, Circuit Judge

(after stating the facts as above). [1] The answer of the defendant denied that the plaintiff went upon the platform at the station for the purpose of becoming a passenger on defendant’s train. -This denial raised the issue as to whether or not the plaintiff did intend to become such passenger. On the trial the plaintiff testified that he went upon the platform, intending to take passage to another station on the west-bound train. This testimony was uncontradicted, but in support of it a witness was called, who testified, among other things, that he saw the plaintiff at the station upon the arrival of the train; that the witness was about to shake hands with him and bid him good-by, when the plaintiff stated that he “was going on through with” the witness “on the train as far as Plummer Junction.” It was objected that this testimony was hearsay, self-serving, and incompetent. It was not self-serving, unless it can be presumed that the plaintiff anticipated falling from the platform, and that he knew it ,was necessary that he should have the rights of an intending passenger to enable him to recover for whatever injuries he might receive. We cannot indulge in such a presumption. We cannot assume that the plaintiff knew that he was about to fall from the platform, or that as an intending passenger the company owed him a duty he was not otherwise entitled to claim.

In a sense, the testimony of the witness was hearsay, but it stood “in immediate causal relation to the act — a relation not broken by the interposition of a voluntary individual wariness seeking to manufacture evidence for itself.” Wharton on Evidence (3d Ed., 1888) par. 259. In this sense it was a part of the res gestae.

■ '“These surrounding circumstances, constituting part of the res gestae, may always be shown to the jury along with the principal fact, and their admissibility is determined by the judge according to the degree of their relation to that fact and in the exercise of hisi sound judgment; it being extremely difficult, if not impossible, to bring this class of cases within the limits of a more particular description.” 1 Greenleaf (12th Ed.) par. 108; St. Clair v. United States, 154 U. S. 134-147, 14 Sup. Ct. 1002, 38 L. Ed. 936.

. We think the testimony was unimportant, hut its admission was properly within-the discretion, of .the court.

[2] In support of the defense of contributory negligence on the part of the plaintiff, evidence was introduced, over the objection of the plaintiff, tending to show that he had been at another station on the line of the road earlier in the day drinking with friends; that, returning in the afternoon along the railroad track in the direction of Herrick, the party had been overtaken and picked up by employés of the road operating a motorcar; that the employes on the motorcar did this as a matter of safety for the men taken on the car. The plaintiff was called in rebuttal and testified that he was not drunk, and over die objection of the defendant testified that the party paid the employés on the car for the ride.

It is contended that the admission of this testimony was error tending to prejudice the jury against the defendant. The testimony was admitted by the court as tending to meet the defense that these men were picked up because they were in an intoxicated condition. The car ride having been brought to the attention of the jury over the objection of the plaintiff, it was not error on the part of the court to permit him to show Ihe circumstances connected with the ride, and the fact, if it was a fact, that, instead of being taken onto the car for his safety, it was, because he paid for the ride to Herrick. It was testimony in rebuttal, and under the circumstances was properly admitted.

The evidence on behalf of the plaintiff upon the issues of the case were sufficient to go to the jury, and the court properly denied the motion of the defendant for an instructed verdict.

[3, 4] The denial of a motion for a new trial in the federal courts is within the discretion of the court, and where that: discretion Las been exercised, and there is evidence to support the judgment, as in this case, a motion is not reviewable on a writ of error. Hedderly v. United States, 193 Fed. 561-571, 114 C. C. A. 227; Pickett v. United States, 216 U. S. 456-461, 30 Sup. Ct. 265, 54 L. Ed. 566; Holmgren v. United States, 217 U. S. 509-521, 30 Sup. Ct. 588, 54 L. Ed. 861, 19 Ann. Cas. 778; Shepard v. United States, 236 Fed. 73-77, 149 C. C. A. 283; Maryland Casualty Co. v. Orchard Land & Timber Co., 240 Fed. 364-367, 153 C. C. A. 290.

The judgment of the court below is therefore affirmed.