135 Iowa 194 | Iowa | 1907
—Plaintiff was struck and injured by an automobile driven by defendant upon one of the streets of Sioux City. At the time of the accident defendant was driving his car eastward on the south side of what is known as “West Seventh Street.” About the time he turned into this street, an ambulance had been driven to,' and backed upon, the south side of the street, and defendant was obliged to go around this ambulance. This he could do by passing out to and along the double-tracked street car tracks in the center of the street, and back to the south side of -the street, or by passing across the tracks to the north side of the street, and in due season to the right-hand or south' side of the street. It is claimed that he took the latter course, passed over the tradks, and was passing eastward on the north side of the street, looking back at the ambulance, when he struck the plaintiff, who was about eighty-five feet from the ambulance, passing from the south to the north side of the street, where his home was situated. Plaintiff is a boy five years of age, and there is no claim that he was guilty of any negligence. Defendant claims that after he passed to the north side of the street he encountered a wagon coming from the east, and that he turned southward to avoid the wagon, and that just as he was passing it plaintiff jumped out from the rear of the wagon and got into the way of the automobile in such a manner that he (defendant) could not stop his machine and avoid the accident. The jury evidently found that plaintiff’s version of the affair was correct, and it returned a verdict for him in the sum of $1,000.
Defendant’s counsel now offer to prove by the defendant, Van Vleck, as a witness while on the stand, that immediately after the accident referred to, and about the time the boy was being carried from the street into the home of his parents, that the father inquired of the defendant how the accident occurred, to which the defendant answered stating the occurrences attending.the accident, and that the boy had run out from behind the wagon and into or upon the automobile of the defendant at a distance or five or six feet, and has been injured by coming in contact with the automobile. And, also, in the conversation immediately after the accident, and while the boy was being carried from the street, the said Clark, the father of the plaintiff, made a statement . to this defendant that he understood it was not the fault of the defendant, and that he further stated at the time that the plaintiff, Stuart Clark, had been sickly, and has just gotten out of bed, and it was too bad that he had to return to his bed on the same day on which he had just gotten out of his bed.
The latter part of this offer to show what the father said his understanding was, and as to the condition of the boy’s health, was clearly hearsay, and not binding upon plaintiff. And the same may be said of the first part of the offer, unless it be that the declarations of the defendant therein referred to were part of the res gestee and admissible as such. The declaration made was called out by inquiries from the father and was self-serving in character. These suggestions are not always controlling, however. The true test is: Were the declarations so closely connected with the transaction in question as to be, in effect, a part of it? Were they the natural and spontaneous utterances of the
Applying these tests, there seems to have been no error in the ruling of the trial court in excluding the testimony. The testimony shows that after the child was struck a police officer of the city, who was close at hand, walked up to defendant and asked him his name, which was given. Defendant then said if he was wanted for anything he would stay. To this the officer responded by saying that he should wait until he saw the boy’s father. The father came out, and, after the officer had talked with him, the defendant went away. It also appears that, after defendant heard the boy cry out, he stopped his machine as soon as he could, and sent his man who was with him back to where the child was to see if he was hurt. Defendant then got out of his machine, which was about 60 feet from the place of the accident, and went back, finding-the boy injured. He then had his conversation with the police officer, and the father came out and carried the boy into the house. The testimony offered had reference to what was said about the time the boy was being carried into the house, in response to an inquiry from the boy’s father, and was to our minds clearly a narrative of a past transaction, and not contemporaneous with, and explanatory of, the main transaction. There was no error in rejecting the testimony. Alsever v. Railroad, 115 Iowa, 338, and cases cited.
Plaintiff’s claim was for unliquidated damages, and the amount to be allowed was of the very essence of the verdict. What was in fact considered by them in making this allowance manifestly inhered in the verdict, and they should not be allowed to impeach it by affidavits. There is no claim that they were not properly instructed by the trial court as to what should be considered, and no suggestion is made that any reference was had at any time to the matters which some of the jurors say were considered in arriving at the amount of plaintiff’s recovery. The many cases we have cited are ample justification for disregarding the affidavits of jurors as to what they considered in making up their verdict.
No reason appears for disturbing the verdict, and the judgment must be, and it is, affirmed.