Cromeenes v. San Pedro, Los Angeles & Salt Lake Railroad

109 P. 10 | Utah | 1910

Lead Opinion

McCARTY, J.

This action was brought to recover damages for the death of plaintiff’s son, who was run over and killed by a train of the defendant on Third West Street, in Salt Lake City, Utah, on May 22, 1907. The negligence alleged by plaintiff consisted in the failure of defendant to ring the bell on its locomotive in accordance with an ordinance of the city then in existence; to give any warning of the approach of the locomotive, which was being run at a high and dangerous rate of speed; and to keep a sufficient lookout for pedestrians. Defendant, in its answer, denied all the acts of negligence set out in the complaint, and further alleged that that the death of the deceased was due to his own negligence' in suddenly and unexpectedly stepping upon the railroad track of the defendant immediately in front of the engine by which he was killed, and so close thereto that the defendant’s employees thereon had no opportunity to stop’ the same before striking him, although the deceased, had he looked for the approaching train, had a clear and unobstructed view thereof. The case was tried to a jury, who returned a verdict for plaintiff and assessed his damages at $4000. To reverse the judgment rendered on the verdict, defendant prosecutes this appeal.

The accident complained of occurred on Third West Street a short distance south of the intersection of said street with Sixth South Street, in Salt Lake City. It is admitted that “both sides of the street, in the vicinity of the accident, were thickly populated with adults and children.” At the time of the accident, which was about five o’clock in the afternoon, two freight trains were being operated on Third West Street. One, an Oregon Short Line train, was being rim north on the west track, and the other train consisting of an engine and caboose, which belonged to the defendant, was being run south on the east track; there being two parallel tracks on said street. The distance between the tracks was about eight feet. Plaintiff and his family, including the deceased, were living and for a period of about eighteen or twenty months prior to the accident had lived, on the west side of Third West Street, near where the accident occurred, during which time several regular trains passed daily over the railroad tracks mentioned. Shortly before the accident, the deceased, who was a bright, intelligent boy, twelve years of age, left his home and went over to a grocery store on the east side of the street. As he was returning to his home, the Oregon Short Line train came up from the south on the west track and he stopped in the street east of the west track and about ninety or one hundred feet south of the south line of Sixth South Street watching the train from the south and evidently waiting for it to pass. While the deceased was thus standing and waiting for the Oregon Short Line train to pass on to the north, he was struck by defendant’s train, which was coming from the north on the east track. There is a conflict in the evidence as to the exact location of the deceased with reference to the railroad tracks when he was struck by defendant’s engine.

The only witness who saw the deceased struck was George McHugh, a switchman for the Oregon Short Line company, who, at the time of the accident, was on the train going-north, which train consisted of an engine and fifteen freight cars. McHugh was on the third car from the rear of the train. When this car was at-Seventh Soutji Street, Mc-Hugh saw the other train coming south on the east track, and he testified that he saw the hoy at about the same time as he did' the train;1 that the boy was crossing the street to the west; that when he got between the two tracks he stopped near the west rail of the east track; that on observing the boy he began signaling with his hands to the operatives of the train coming from the north on the east track; that be also tried to attact tbe attention of tbe boy at tbe same time; that it seemed that be “attracted tbe attention of tbe men on tbe train from tbe north as they slowed np; they came pretty near to a standstill, but they bit tbe boy;” that after striking tbe boy tbe train passed on until tbe rear end thereof was opposite or near where tbe boy was lying after being killed. Counsel for appellant have, in their brief, invited attention to some expressions in tbe testimony of this witness, which, standing alone, would seem to indicate that tbe deceased was standing between tbe rails of tbe east track when be was struck by tbe train. By an examination of tbe testimony of tbe witness, as tbe same appears in tbe bill of exceptions, it will be seen that bis attention, while testifying, was called to some kind of a diagram or map that was sketched or drawn on a blackboard representing tbe street and railroad track at tbe point and in tbe vicinity of where tbe accident happened, and at times be became very much' confused and did not seem to understand which direction was east and wliieh was west on tbe map. Tbe apparent discrepancy in bis testimony as to where tbe deceased was standing when struck by tbe engine, we think, was due to tbe inability of tbe witness to understand tbe map or sketch of tbe premises as it appeared on tbe blackboard. In bis direct examination be testified, in part, as follows: “Q. Now, will you tell tbe jury about where tbe boy was standing at that time ? A. Standing on the west side of tbe east track. ... Q. And between tbe two tracks? A. Yes, sir.” On cross-examination be stated repeatedly that tbe deceased, when struck by tbe engine, was standing west of tbe east track.

Plaintiff also introduced testimony from which it could be fairly inferred that tbe operatives of tbe defendant’s train saw tbe deceased when tbe engine was about tbe center of Sixth South Street, which, according to tbe undisputed evidence, is from 150 to 160 feet north from tbe point where tbe accident occurred.

Tbe testimony of tbe engineer and fireman, who were operating defendant’s train at tbe time of tbe accident, tended1 to show that the deceased was standing between the rails of the east track, and that the train was going at the rate of about eleven or twelve miles an hour. The fireman testified that he first saw the deceased as the engine was crossing the south line of Sixth South Street; that the deceased was crossing the street walking west; and that he stepped upon the track when the engine was within about thirty feet of him. The engineer testified on this point, in part, as follows: “As we crossed Sixth South Street, I was looking ahead of the engine. . . . Just after we got over the south side of Sixth South Street crossing, the fireman said, ‘Look out!’ I was looking out and didn’t see anything, so I looked over at him to see what he meant. . . . Then I looked back at the tracks, and this is when I saw the boy step over the rail. ... I applied the air and blew the whistle. . . . I put the air into emergency. That means setting the air brakes to the full capacity. . . . He was then between thirty and forty feet ahead of the engine. . . . I didn’t see the boy at all before he got on the tracks. He was just stepping over the rail as I saw him. I know he hadn’t been on there before because I had been looking ahead. I didn’t see him until I was south of Sixth South Street.” The engineer and fireman of defendant’s train also testified that as the train approached Sixth South Street the whistle was blown, and that the bell was rung continuously until after the deceased was struck. On the other hand, one of plaintiff’s witnesses testified that the train, as it crossed Sixth South Street, was running at the rate of eighteen or twenty miles an hour. Two other of his witnesses testified that it was going from twenty-five to thirty miles an hour. And the testimony of practically all of his witnesses tended to show that the bell was not rung prior to the time the deceased was struck by the engine.

It was stipulated that at the time of the accident an ordinance of Salt Lake City was in force which provided that: “It shall be unlawful for any person employed on a locomotive to fail to continuously ring the bell of such locomotive while in motion in the inhabited portions of the city.” It was further stipulated that, by virtue of a franchise from the city, the defendant had a lawful right to run its trains on Third West Street and along, both of said tracks.

As is usual in this class of cases, there is a sharp conflict in the evidence on the material issues in the case. We are of the opinion that there is ample evidence to support a finding that defendant’s train was, on the 1 occasion in question, operated in a careless and negligent manner; and, while counsel for the railroad company do not admit that the company was guilty of negligence, yet they do not claim that there is not sufficient evidence to support a finding to that effect. Therefore we will not refer further to that issue of the case.

Appellant’s first assignment of error relates to the refusal of the court to direct a verdict in its favor. It is contended that the undisputed evidence in the case shows that the deceased was, as a matter of law, guilty of contributory negligence. We think this contention is untenable. The accident occurred on one of the public streets of the city where the deceased had as much right to be as appellant had to run its cars, with the exception that when they were both upon the street at the same time appellant had the prior right of passage. When the deceased was first seen by the witness McHugh, he was in the act of crossing the street going in the direction of his home. At this time Mc-Hugh was at Seventh South Street, and, as we have heretofore observed, he was on the third car from the rear of the train; there being fifteen cars in the train. It necessarily follows that the head of the train was some distance north of Seventh South Street when the boy was first observed by McHugh, and we think it may be fairly inferred from these facts, when considered in connection with the evidence of McHugh wherein he says: “I said I didn’t see where he came from, but he was walking in there and was standing there as our train passed by going north, looking right at our train as it passed by him. . . . He couldn’t go any farther on account of our train” — that the head of the train going north was near to, if not directly in front of, the deceased when he stepped between the two tracks evidently waiting for it to pass on to the north so that he could continue on his way home. Now, if defendant’s train was traveling at the rate of twenty-five or thirty miles an hour— and there is abundant evidence in the record to support a finding to that effect — we think it may be fairly inferred that the train was a considerable distance north of Sixth South Street when the deceased started to cross the street in the direction of his home. And there is sufficient evidence to support a finding that the train could have been stopped in time to have avoided the accident if it had not been going at an unreasonable and dangerous rate of speed, and the engineer and fireman had kept a proper lookout ahead as they approached and crossed Sixth South Street. The deceased had a right to assume, and to act on the assumption, that defendant would use ordinary care . 2, 3 in running its train across the public streets and along the thoroughfares of the thickly populated districts of the city. This, however, did not relieve him of the duty which the law imposes on people, generally who have occasion to go upon or to cross railroad tracks, to use due care for their own safety. As was said in the casé of Spiking v. Con. Ry. & P. Co., 33 Utah, 313, 93 Pac. 838, the rights and duties of persons and railroad companies in the use of streets are mutual and reciprocal. As to whether the deceased used the same degree of care and caution in entering upon and crossing defendant’s railroad track that would be expected generally of persons of hi's age, intelligence, and experience, under the same or similar circumstances, we think was a question of fact for the jury to deter- 4 mine. To hold, in the face of the evidence in this case, which, for the purposes of this appeal, must be viewed and considered in the light most favorable to respondent, that the deceased was, as a matter of law, guilty of contributory negligence, would tend to establish a rule, the effect of which would be to cast the whole duty upon the people, who have occasion to go upon the public streets which are in part occupied by railroad companies in the maintenance of tracks and the moving of trains, of avoiding collisions and injuries. And, furthermore, to so hold would, to a large extent, deprive the public of the protection which the law, by imposing on railroad companies the duty to use ordinary care in moving their trains across public streets aand along the thoroughfares of thickly populated districts of our towns and cities, is designed to give. This we have no disposition to do.

The court, among other things, charged the jury as follows : “You are further instructed that if you believe from the evidence that the speed at which the engine in question was being run immediately before the accident was unusual and greater than ordinary prudence would have dictated in view of the neighborhood and of the dangers likely to be encountered, and that the engineer saw the boy, before striking him, in a position where he (the engineer) ought, as a man of ordinary prudence, skilled in the business to have appreciated that the boy was in danger, and would have been able to stop the engine had it been going at a speed dictated by ordinary prudence, but could not stop because he was running the engine, when he saw the boy’s peril, at a speed which was negligent, then the death of the boy was caused by the negligence of the engineer.”

The giving of this instruction is assigned as error. It is contended that the court, by giving this instruction, “entirely disregarded the defense of contributory negligence.” The court, in another part of its charge, after defining the term “ordinary care,” and instructing the jury in general terms as to what constituted contributory negligence, charged the jury as follows: “If the jury finds from the evidence that the deceased, Charles Raymond Cromeenes, was careless and negligent within this definition, the plaintiff cannot recover even though the defendant may also have been negligent. It was the duty of the deceased to be careful and to use all reasonable care, as hereinbefore defined, to avoid injury to himself.” _ The court further charged the jury that, “unless you find from a preponderance of the evidence that the defendant was negligent, the plaintiff cannot re-coyer; or, if you find from tbe evidence tbat tbe defendant was negligent, but tbat tbe deceased was also guilty of negligence wbicb contributed diectly to- bis death, then tbe plaintiff cannot recover.” Tbe court also instructed tbe -jury as follows: “Tbe court instructs you tbat if you believe from tbe evidence tbat tbe deceased stepped upon tbe track in front of tbe approaching train without looking or taking any precaution such as would reasonably be expected from a boy of bis age, experience, and discretion, to learn of tbe approach of an on-coming train, when but to look or otherwise use ordinary care would have disclosed to him tbe train’s approach, be was guilty of contributory negligence wbicb bars a recovery for bis death, and your verdict should be for tbe defendant.” It will thus be observed tbat tbe court, while it did not charge tbe jury on the question of contributory negligence in tbe instruction complained of, nevertheless did give other instructions in wbicb it carefully guarded' tbe rights of tbe defendant, so far as they were involved in tbat issue. It is a familiar rule of law tbat all tbe instructions must be read and considered together, and if, as a whole, they contain a correct 5, 6 statement of tbe law applicable to tbe- issues in a case, tbe court cannot be convicted of error because tbe law applicable to tbe different questions involved is separately stated. In such case tbe instructions supplement each other, and if, when read and considered as a series they contain a correct statement of tbe law, it is sufficient.

Appellant’s next assignment of error relates to the admission in evidence'of a statement made by tbe witness Mc-Hugh to tbe engineer on defendant’s train immediately after tbe accident occurred. McHugh testified tbat tbe train be was on stopped a little before tbe deceased was struck; tbat be got off tbe train and walked tbe length of “a car or two” to where the engineer was standing. Plaintiff’s counsel then asked tbe witness tbe following question: “What did you say to tbe engineer ?” Counsel for defendant objected’ to tbe question on tbe ground that it was incompetent and immaterial. In response to tbe objection, tbe court said: “The question is whether it is a part of the res gestae. Prima facie it would seem that it was. There is no statement from the witness as to how long a time elapsed. It seems it must have been very soon afterwards.” The witness was then further interrogated respecting the length of time between the happening of the accident and when he spoke to the engineer, and, after substantially repeating the testimony that he had already given on this point, he was asked the following question: “What did you say to the engineer, and what did he say to you?” Counsel for defendant objected to this question as follows: “I renew the objection. It is immaterial and irrelevant, and not part of the res gestae. It is not connected with the thing at all.” Counsel for plaintiff then stated to the court: “I have shown the court what the answer was in the other trial.” The court replied: “The question, in the mind of the court, is, it seems to have been simply an opinion.” In response to the remarks of the court, counsel for respondent said: “The important thing is-what the engineer failed to say. It was up to him.” The objection was overruled, to which ruling appellant duly excepted. Counsel for respondent then renewed the examination of the witness as follows: “Q. What did you say to him? A. Isays: ‘You have done a damn fine job. Why •didn’t you stop before you ran over him ?’ Q. What did he say to that ? A. I didn’t hear him say anything.”

No further questions were asked the witness on this point. Nor did appellant renew its objection to this line of testimony. Nor did it move to strike out the testimony elicited by the last two questions. Respondent now contends that, as appellant did not interpose an objection to the last two questions, nor move the court to strike out the answers made thereto, no exception was properly saved to the admission of this testimony, and hence there is nothing for the court to review under this assignment of error. Objections having been properly made and exceptions taken to this line of testimony, appellant was not required, in order to save the question for review, to object to each ques- 7 tion thereafter asked the witness concerning the same matter covered by the objections already made. (Spelling New Tr. & App. Pro., see. 296; 8 Ency. Pl. & Pr. 229; Magee v. North Pac. C. R. Co., 78 Cal. 430, 21 Pac. 114, 12 Am. St. Rep. 69; Jones on Ev., sec. 897; Gilpin v. Gilpin 12 Colo. 504, 21 Pac. 616.)

Respondent further contends that the question did not necessarily call for inadmissible testimony, and that therefore appellant should, if. he desired to save an exception to the admission of the testimony given in answers to the questions, have moved the court to strike it out, and, not having done so, the question is not properly before this court for review. The general rule seems to be that where a witnéss is asked a question, and the question itself does not indicate that the testimony sought to be elicited thereby is incompetent, or otherwise objectionable, it is not 8 error for the court to overrule the objections made thereto. If the answer contains testimony that is objectionable the remedy of the party objecting is to move the court to strike out that which is improper. The reason for the rule undoubtedly is that the court, in such case, has no means of determining, before the question is answered, whether the testimony sought to be elicited is or is not admissible. But this is not that kind of a case. It appears from the record that some time prior to the trial of this case there had been another trial in which the death of the deceased was an issue, and that McHugh was called as a witness and testified in that ease. And before the ruling here complained of was made, the court’s attention was called to an answer made by McHugh to the same, or a similar, question propounded to him “in the other trial.” And, furthermore, counsel for respondent, at the time the objection was made, stated to the court that the “important thing” he expected to show by this testimony was “what the engineer failed to say.” It therefore appears that both court and counsel were fully advised, before the court ruled on ap- 9 pellant’s objection, as to the character of the testimony the witness would give if permitted to answer the question. The court having admitted the testimony advisedly, no motion to strike out was necessary. Under tbe circumstances, tbe situation is tbe same as tbougb tbe respondent bad offered, at tbe time tbe objection was made, to prove tbe very thing complained of, and tbe court bad permitted him to do so over appellant’s objection.

Tbis brings us to tbe more improtant question presented by tbis appeal, namely, did tbe court err in admitting evidence of tbe statement inqde by McHugh to tbe engineer immediately after tbe accident occurred ? My associates are of tbe opinion that wbat McHugb said to tbe engineer on that occasion was admissible in evidence as a part 10 of tbe res gestae, and that tbe court did not err in so bolding. I take an entirely different view of tbe question, and am of the opinion that tbe ruling of tbe court, under tbe great weight of authority, cannot be upheld on that ground. In view of tbe importance of tbe principle involved in tbe ruling complained of, and tbe bearing such ruling may have upon cases involving tbe same question that may hereafter come before tbe courts of tbis state, I have decided to briefly discuss tbis phase of tbe case . To bring tbe declarations of a party within the doctrine of res gestae, they must be connected with, and grow out of, tbe act or transaction which is tbe subject-matter of inquiry so as to form one continuous transaction, and must, in some way, elucidate, qualify, or characterize tbe act, and, in a legal sense, be a part of it. (Leach v. Railroad, 29 Utah, 285, 81 Pac. 90, 110 Am. St. Rep. 708.) “Tbe test of whether or not declarations are res. gestae is: Where tbe facts talking through tbe party, or tbe party’s talk about tbe facts ? 11 Instinctiveness is tbe requisite, and when this exists tbe declarations are admissible.” (7 Words and Phrases, 6136.) Upon tbis proposition tbe authorities all agree. There is, however, a conflict in tbe authorities as to whether declarations made by a mere bystander or onlooker are admissible as a part of tbe res gestae; all other conditions necessary to make them admissible as such being present. But I think tbe weight of authority is to tbe effect that tbe party, making tbe declaration must in some way be an actor or par-tieipant in the transaction or event to which his declaration relates. “The comments and criticism of mere bystanders cannot be proved.” (Gillett on Ind. & Collat. Evi. 290; 24 A. and E. Ency. L. (2 Ed.) 681, 686; 7 Words and Phrases, 6131; Underhill on Crim. Evi. 125, 126; Ganaway v. Salt Lake Dramatic Ass’n, 17 Utah, 37, 53 Pac. 830; Indianapolis St. Ry. Co. v. Taylor, 164 Ind. 155, 72 N. E. 1045; Kuperschmidt v. Met. St. Ry. Co., 47 Misc. Rep. 352, 94 N. Y. Supp. 17; Louisville Packet Co. v. Samuels’ Adm’x [Ky.] 59 S. W. 3; Kaelin v. Commonwealth, 84 Ky. 354, 1 S. W. 594; Senn v. Southern Ry Co., 108 Mo. 142, 18 S. W. 1007; Flynn v. State, 43 Ark. 293; Dixon v. Northern Pac. Ry Co., 37 Wash. 310, 79 Pac. 943, 68 L. R. A. 895, 107 Am. St. Rep. 810; Wilkins v. Ferrell, 10 Tex. Civ. App. 231, 30 S. W. 450; Leahey v. Cass Ave. & F. G. Ry. Co., 97 Mo. 173, 10 S. W. 895, 10 Am. St. Rep. 298; Ehrhard v. Met. St. Ry. Co., 69 App. Div. 124, 74 N. Y. Supp. 551; Chicago City Ry. Co. v. White, 110 Ill. App. 23; Gosa v. Southern Ry., 67 S. C. 347, 45 S. E. 810; Railroad Co. v. Le Gierse, 51 Tex. 189; Dwyer v. Continental Ins. Co., 63 Tex. 354; Louisville R. R. Co. v. Johnson [Ky.] 115 S. W. 207, 20 L. R. A. [N. S.] 133.)

I do not wish to be understood as holding that the party making a declaration must necessarily be a victim of the transaction, or have some responsibility connected therewith, or personal or special interest therein, to be an actor or participant in such transaction. A bystander may, during the happening of an act or event, become an actor or participant therein. If on such occasion he makes a declaration that has a bearing or influence upon one or more of the events leading np to and surrounding the principal transaction, and such declaration tends to explain, elucidate, or characterize the act or transaction under investigation, it is generally admissible as a part of the res gestae. (11 Ency. Ev. 338, and cases cited in note; Gillett on Ind. and Collat. Ev. 290; Baker v. Gausin, 76 Ind. 321; Morton v. State, 91 Tenn. 437, 19 S. W. 225; Gillam v. Sigman, 29 Cal. 638; Kleiber v. People’s Ry. Co., 107 Mo. 240, 17 S. W. 946, 14 L. R. A. 613; Railway Co. v. Murray, 55 Ark 248, 18 S. W. 50, 16 L. R. A. 787, 29 Am. St. Rep. 32; State v. Kaiser, 124 Mo. 651, 28 S. W. 182.) I also invite attention to an eleborate discussion of tbis question found in a note to Louisville v. Johnson, supra, reported in 20 L. K. A. [N. S.] 133, where many eases are cited and discussed.)

Tested by the foregoing rules,. I think the satement made by McHugh to the engineer was clearly inadmissible. He did ho act which contributed to the unfortunate occurrence, and was in no way connected with the happening of it except as a mere observer-or spectator. Nor did the statement made by him to the engineer tend to explain or illustrate any fact or circumstance leading up to or in any way connected with the accident. True, he testified that, when he saw defendant’s train approaching from the north and realized the danger the deceased was in because of the approaching train, he made signals with his hands and arms and endeavored to attract the attention of the engineer and fireman on the train as well as that of deceased. What he did prior to the accident in endeavoring to attract the attention of the engineer and fireman to the perilous situation of the boy was admissible in evidence as tending to show negligence on the part of the parties in not keeping a proper lookout ahead of their train as it proceeded along this public and much used thoroughfare. But what McHugh said to the engineer after the boy was killed was, at, most, only his opinion or conclusion respecting a past transaction, and in no way tended to explain, qualify, or illustrate any act or omission of either of the operatives of the train, or of the boy. The first part of the declaration was nothing more than a criticism of what had been done, and the latter part of it a mere inquiry in regard to a material fact in the case. Therefore, under all the authorities as I read them, the statement was inadmissible as res gestae. And, furthermore, the record shows Mc-Hugh’s statement to the engineer was not introduced for the purpose of explaining, illustrating, or characterizing the transaction, or any phase of it, but was introduced for the purpose of showing that the engineer made no reply thereto. It is plain that tbe silence of tbe engineer, and bis failure to reply to tbe remarks, criticisms, and inquiry made by Mc-Hugb after tbe transaction was ended, in no way tended to illustrate or explain any fact or circumstance material to tbe issue. Moreover, tbe engineer was not required to reply to wbat McHugb said. (Blue Ridge L. Co. v. Price, 108 Va. 652, 62 S. E. 938; Luby v. Hudson Riv. Ry. Co., 17 N. Y. 131; Chicago City Ry. Co. v. White, 110 Ill. App. 23; Adams v. Railroad, 74 Mo. 553, 41 Am. Rep. 333; Vicksburg & Meridian Railroad v. O’Brien, 119 U. S. 99, 7 Sup. Ct. 118, 30 L. Ed. 299.) He was no more called upon to answer McHugb on that occasion than be would bave been bad McHugb met bim on tbe street a week after tbe accident and made a similar statement to bim. (Barker v. St. L., I. M. & S. Ry. Co., 126 Mo. 143, 28 S. W. 866, 26 L. R. A. 843, 47 Am. St. Rep. 646.)

Suppose, for example, that, immediately after McHugb made tbe statement referred to, some other bystander or onlooker bad exclaimed to tbe engineer, “Mr. Engineer, tbe boy started to cross tbe track when tbe train was witbin a few feet of bim,” and another spectator bad declared to tbe engineer, “Tbe care with which you were operating and moving tbe train prior and up to tbe time the boy as struck, and tbe alertness and celerity with which you acted when tbe boy started towards tbe track, were commendable,” and another observer of tbe transaction bad said to bim, “Tbe boy entered upon tbe track when tbe train was witbin a few feet of bim, but you did all that could be done under tbe circumstances to avert tbe accident.” I do not think that it will be seriously contended that declaration such as I bave suggested would be admissible in evidence. And yet it must be conceded that any one of them would be as much a part of tbe res gestae, bad it been made on that occasion, as the exclamation of McHugb to tbe engineer. To further illustrate: Suppose tbe engineer, in reply to McHugh’s declaration, bad said: “Tbe train was-going not to exceed eight miles an hour, tbe bell was ringing, and I was keeping a vigilant lookout ahead. Tbe boy stepped upon tbe track when tbe engine was within a few feet of him. I did all in my power to stop the train before he was hit, but was unable to do so.” Would it be contended that this would have been available to the defendant in its defense % Certainly not, because it is apparent that any explanation the engineer might or could have made in response to the inquiry made by McHugh would, under the circumstances, have been a mere narration of a past and completed transaction only. In other words, it would be a case of a party speaking about the event, rather than a ease of the event speaking through the party. The authorities uniformly hold that statements which are only a narration or history of completed transactions are never admissible in evidence as a part of the res gestae. The following are a. few of the many authorities that illustrate and support this rule: 24 A. and E. Ency. L. (2d Ed.) section 110; Gillett on Ind. and Collat. Evi. section 263; Underhill Crim. Evi. p. 120; 2 Jones, Evi. section 348; Wharton, Crim. Ev. (9th Ed.) 264; 16 Cyc. 1258, 1259; 2 Rice, Evi. p. 381; 1 Elliott, Evi. sections 539, 543; People v. Davis, 56 N. Y. 95.

Now, if I am right in my conclusion that any explanation the engineer might have made to McHugh’s inquiry would have been inadmissible, it necessarily follows that the question itself was inadmissible.

The views herein expressed are not in conflict with the general rule announced in the cases, with possibly one or two exceptions cited in the opinion written in this case by the Chief Justice. In nearly every case cited by the Chief Justice, the declarations were made by a party who was either a victim of the event or transaction under investigation, or by some one who was to some extent instrumental in bringing it about, or had some responsibility in connection with the matter, or by a bystander who had become an actor or participant in the sense as I have hereinbefore stated. Nor is what I have herein said at variance with the rule declared by the authorities, except as to a few cases cited in the notes to the ease of Louisville v. Johnson, supra, in support of the conclusions therein reached by the annotator. A large number of criminal cases are cited in tbe notes referred to, and some seven or eight of these cases are cited' by the Chief Justice in the opinion written by him. But in nearly every criminal case cited by the Chief Justice the declarations were either made by the victim of the affray or by the defendant, or some one in the presence and hearing of the defendant, and in some cases the statements were made directly to the defendant. Therefore they are not directly in point on the questions here involved. The rule is well settled that declarations of a person not a party to the affray or transaction constituting the crime charged, made at the time or immediately after its commission in the hearing of the defendant which tend to illustrate, explain, or characterize any fact or circumstance material to the issue, are admissible in evidence.

The general rule is well and tersely stated in 21 Cyc. 943, as follows: “On the trial of an indictment for murder, declarations made by the deceased shortly after receiving the fatal wound may be admitted in evidence as part of the res gestae, although they were not made in the presence of the defendant.” On page 944 of the same volume, it is said: “Declarations of third persons are as a rule not admissible, but a statement made directly to defendant with reference to the crime, and to be judged by his conduct, may be admissible as a part of the res gestaeThe criminal cases cited in the notes referred to, and in the opinion written by the Chief Justice, in the main, illustrate this general rule. In the case of Young v. State, 149 Ala. 16, 43 South. 100, cited by the Chief Justice, where a bystander said, “Come bach, it was an accident,” the defendant, in response to the declaration, immediately returned. And, as stated in the opinion, “it was competent as showing, or tending to show, the conduct or demeanor of the defendant at or about the time of the shooting.” So in the case of People v. McArron, 121 Mich. 1, 79 N. W. 944, the declaration, “now, see what you have done!” was addressed to the defendant by his mother immediately after his affray with the deceased, to which the defendant replied, “I will show him.” In State v. Kaiser, 124 Mo. 651, 28 S. W. 182, tbe declaration: “Hurry up! They have about killed this man” — was made under the following circumstances by a woman who was a witness to the affray: The woman had a controversy with the defendant Kaiser about the affray while he and the other two assailants were in the act of beating the deceased. She thought, as they were leaving the scene of the crime, that Kaiser was going to strike her, and she “hurried up' and rushed into Mr. Van Phul’s arms” and made the declaration referred to. The court, in the course of the opinion, says: “It was an exclamation made by a person on the spot, in the presence of the assaulted- man, and while his assailants were yet in sight, just leaving their victim, and when the witness who heard the exclamation, the dying man, the woman who made the exclamation, and the fleeing assailants were still within fifty feet of each other.” Under these circumstances, the women herself was in a certain sense an actor and a participant in the transaction. If the engineer in the case at bar had been charged with and was on trial for criminal negligence for causing the death of the boy Cromeenes, the rule as stated in 21 Cyc. 943, 944, and announced in nearly all of the criminal eases cited by the Chief Justice, might have some application. But as this is a civil action in which the engineer is not even a party defendant, the authorities last referred to, in the main, neither support nor controvert the views herein expressed.

Appellant also assigns as error certain remarks made by one of the attorneys for respondent in his argument to the jury, to which remarks appellant, at the time, duly excepted. While I am of the opinion that counsel, in his reflections upon and criticisms of McHugh as a witness, went to the very border, if he did not exceed the limits, of legitimate and proper discussion, yet McHugh being respondent’s principal witness, and the one upon whose evidence he mainly relied for a recovery, and there being nothing in the record, as I read it, to justify an inference that he was an unwilling witness, the argument 12 was prejudicial, if at all, to respondent rather than to appellant, as its natural tendency was to minimize the effect of McHugh’s evidence, wbicb from tbe beginning to the end was favorable to respondent. Furthermore, while I am of the opinion that, as an abstract proposition, it was error for the court to admit evidence of the statement made by McHugh on the occasion referred to, I am as clearly of the opinion that it was not prejudicial error. At the time the evidence was offered, counsel for respondent in answer to the objection made by appellant to its admission, stated to the court, in the presence and hearing of the jury, that “the important thing is what the engineer failed to say; it was up to him.” The evidence having been offered for that purpose only, I fail to see wherein it could have prejudiced the rights of appellant. The only possible effect detrimental to appellant’s interests that can be claimed for McHugh’s statement to the engineer, and the remarks of counsel complained of, under the circumstances, is that they tended to arouse the passions and prejudices of the jury against appellant to such an extent as to influence their verdict. I am of the opinion, however, that the verdict itself which, under all the facts and circumstances, is not at all excessive, shows conclusively that the matter complained of could have had no such effect on the jury.

There being no prejudicial error in the record, the judjment is affirmed, with costs to respondent

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Concurrence Opinion

Straup, C. J.

(concurring). I concur in the result affirming the judgment. What principally causes our disagreement relates to the action of the court overrulling the objection to the question propounded to the witness McHugh. I think no error was committed in the ruling. McHugh was a brakeman on the train going north. He saw the train running south approaching the deceased. He saw the deceased walking toward and standing near the track. He Saw, what was apparent to any one seeing what he saw, the perilous situation of the deceased. He swung his arms and shouted to attract the attention of the engineer of the approaching train, and also of the boy. He further testified that he apparently attracted the attention of the engineer, for the train slowed down, but ran on and hit the boy; that the train, on which the witness was, stopped a little before the other train ran over the deceased; that as soon as that happened it also stopped; and that the witness then a few car lengths away, immediately went up to the engineer, who was standing in the gangway, and said: “You have done a damn fine job. Why didn’t you stop before you ran over him?” From the situation disclosed by the evidence, the question propounded to the witness apparently called for something which might well be of the res gestae. That is, it cannot be said that the main transaction had so completely ended that the question propounded could not call for a declaration or statement prompted by or made under the immediate and present influences of the principal transaction or main event, and so related thereto as to characterize or explain it. It is well settled that it is not error to overrule an abjection to a question when the answer may or may not be admissible. This is conceded; but it is said that the trial court, when the ruling was made, had before it the answer which the witness had made at a former trial in response to a similar question, and that the court therefore knew what answer the witness would make if permitted to answer. The record shows that the answer made by the witness at the former trial was shown to the court. But the question which was propounded to the witness and the answer which was made by him at the former trial is not in the record. I therefore do not know what the answer was that the court looked at. I cannot assume that the witness answered the same at both trials. We know witnesses frequently do not do so. Whatever presumptions in that regard may be indulged,.those which are in favor of, and not those against, the ruling ought to be indulged. Appellant has the burden of specifically showing the alleged error by the record, not by presumptions or inferences.

Furthermore, I think the answer was properly received under the res gestae rule. It is said that it was not proper (1) because the declaration, was that of a bystander or observer, and not that of an actor or participant, or of one connected with the preceding circumstances or transactions to which the declaration related, and (2) because the declaration was a mere criticism, or comment, or opinion, of the declarant, and that, too, of a bystander or mere observer. The general limitations of the res gestae rule, so fay as necessary here to be noticed, are: (1) The declaration or utterance must be spontaneous or instinctive; (2) it must relate to or be connected with a main or principal event or transaction itself material and admissible in evidence; and (3) it must have been the result or product, the outgrowth, of the immediate and present influences of the main event, or preceding- circumstances, to which it relates, and it must be contemporaneous with it and tend to explain or elucidate it.

The declarant here witnessed the entire occurrences and happenings of the main event — the accident. -He saw the movements of the train, the movements and position of the boy, and the collision. What he saw prompted and induced what was done by him. It as well prompted and induced what was said by him. Both were produced by the immediate influences of the preceding circumstances — the main event. Both related to and tended to elucidate or explain the main event, which, of course, was itself material and admissible in evidence. I cannot see how what was done by the declarant can be received, but what was- said l>y him rejected. Both occurred about the same time and were equally related to, and were prompted and induced by the present and immediate influences of, the main event. True, the declaration was made just after the boy was run over; the declarant testified, “just as soon &É it happened.” But it was the immediate present influence of the happening of that fact which prompted the declaration and to which it-related, which it tended to explain or characterize. Whatever grounds for difference of opinion may have arisen in cases as to whether the declaration was contemporaneous or coincident with the main event or transaction, I see no ground for such difference here. The -two were as nearly eontem-poraneous as two things could well be. As many times explained by the courts, the word “contemporaneous” is not taken literally, and that time is not the real governing factor in the determination, but is only important in determining whether the statement was spontaneous and intimately connected with the main transaction, and was prompted or produced by its immediate and present influences. I have no doubt that the declaration here was the natural and spontaneous outgrowth of the main event or preceding circumstances, to which it related and tended to explain, and that their relation to each other was of immediate cause and effect, and that the declaration was an instinctive and un-meditated utterance made while the impressions produced by the main event had full possession of the declarant’s mind. A declaration made under such circumstances is, I think, admissible, whether made by an actor or participant or by one otherwise connected with the main event or transaction, or by a bystander or observer who witnesses or observes happenings and occurrences of the transaction or event. And to that effect are the text-writers and cases generally.

Says Mir. Wigmore, in his work on Evidence (volume 3, sec. 1755) :

“That nervous excitement which renders an utterance admissible may exist equally for a mere bystander as well as for the injured or injuring person, and therefore the utterance of either, concerning what they observed, are equally admissible. ... In a few courts, the declarations of a mere bystander have been excluded. But, in the greater number, no such discrimination is made — assuming, of course, that the bystander’s declarations relate only to that which has come under his observation.”

Mr. Elliott, in his work on Evidence (volume 1, sec. 550), says: “Declarations of bystanders may be so connected with the transaction as to characterize and be part of it. When this is the case they are admitted on the same theory as if they they had been made by one of the actors.” To the same effect is 1 Whart. Ev. sec. 260, and 11 Ency. Ev. p. 337.

In notes to tbe case of Louisville R. Co. v. Johnson, reported in 20 L. R. A. (N. S.) 133, where many cases on this question are collated and reviewed, I think it is very clearly shown that the weight of authority is to the effect that exclamations and declarations of bystanders or observers, who witness or observe the transaction or event to which the declarations relate, are admissible as of the res gestae, if, of course, made spontaneously or -instinctively, and are otherwise shown to be admissible under the .rule. I know expressions may be found in some cases, frequently dicta, that to admit a declaration in evidence as part of the res gestae the declarant himself must in some way be connected with or related to the transaction, and that it is not enough that he be a mere observer of or witness to the transaction. But the text-writers, and the courts generally, say, as does Mr. Elliott, that it is the declaration, not the declarant, that must be related to, or connected with, the transaction. It is the declaration, not the declarant, which is required to be the product, the outgrowth, of the transaction. Of course, .there must, in any case, be a sufficient showing that the statement or declaration related to or was connected with the transaction, and was prompted by its immediate and present influences, and was made under such circumstances that its spontaneity is assured. A condition of nervous excitement may be as readily produced in one witnessing or observing the occurrences of a transaction as is an actor or a participant therein, and the one, as well as the other, may be prompted by the natural and immediate influences of the transaction, to spontaneously and instinctively declare or exclaim something relating to and explaining it. Indeed, as said in the notes to the case of Louisville R. Co. v. Johnson, 20 L. R. A. (N. S.) 134:

“It would seem that the apparently involuntary, spontaneous, and contemporaneous declarations or exclamations of a bystander who had just witnesses an accident or affray in which he had otherwise no part or connection would be entitled to greater credence than similar exclamations or declarations by one who was an actor or participant therein, and who might therefore have had an interest in giving a particular aspect or color to the event, because of the greater probability in the former ease than in the latter that the exclamations or declarations which were in appearance spontaneous and involuntary were in fact such, and not the product of rapid reflection and consideration.”

If, as the courts and the test-writers say, the test of admissibility of a declaration, as of the res gestae, is whether the declaration is the result of the transaction talking through the declarant, or the declarant talking about the transaction, then what does it matter whether the transaction talks or speaks through the passive instrument of an actor or participant therein, or of one witnessing or observing the transaction? These views are not in conflict with the case of Ganaway v. Salt Lake Dramatic Ass’n, 17 Utah, 37, 50 Pac. 830. There the court held the statements of the “onlookers” not instinctive, but mere expressions of opinions with respect to the legal authority of the officer to eject and arrest the plaintiff. The court (there approvingly quoted from Wharton that “exclamations of bystanders, if instinctive, are in like manner admissible” as those of actors or, participants.

Of course “mere comments or criticisms by bystanders” are not admissible under the rule. Nor are the comments and criticisms of actors or participants admissible. They are inadmissible, not because made by a bystander, though a witness to, or an observer of, the transaction, but on the ground that they are not spontaneous or instinctive utterances prompted or caused by the immediate and present influences of the transaction. In other words, they are ordinarily the result of the declarant talking about the transaction, and not the transaction talking through the declarant, and oftentimes do not even tend to explain or illustrate it. And for the same reasons, oftentimes, mere opinions of the declarant, whether an actor or a participant or an observer, are likewise inadmissible under the rule. An opinion expressed by a declarant in the course of a mere conversation and as the result of it, or of reflection or afterthought, though at the scene of the transaction and immediately after it happened, would not be admissible as a part of the res gestae. Neither would any other remark or declaration made under such circumstances. They are not, in such case, the outgrowth of the transaction to which they relate, but of the conversation or reflection; and hence are not part of the res gestae. But if the declaration is the spontaneous or instinctive utterance of the declarant, and was produced by the immediate and present influences of the transaction before there was time to reflect, contrive or misrepresent, and was rendered, as said by Mr. Wigmore, “while the. nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance,” then the declaration is admissible, though it is partially or wholly the expression of an opinion or conclusion.

I may again observe that when the declarant is but the passive instrument through which ithe event itself speaks, it doee not matter whether it speaks in pious or impious language, or exclaims an opinion or conclusion, or a fact. iOf course, the opinion, or conclusion, like any other declaration, to be admissible under the rule, must tend to explain or elucidate the main event or transaction. The fact that the declaration is in form a conclusion or opinion may be important in determining whether the declaration or utterance was spontaneous or instinctive, or was the result of reflection or afterthought, and whether it tended to explain or characterize the transaction. But if the declaration has all other essentials rendering it admissible under the rule, it is not to be rejected because it expresses an opinion or conclusion. And to that effect is the weight of authority (11 Ency. Ev. 318.) and the case of Wilson v. Southern Pac. Co. 13 Utah, 352, 44 Pac. 1040, 57 Am. St. Rep. 766. There, within three minutes after the collision, the plaintiff walking over to a switchman, and, addressing him, asked, “Who is to blame for this?” The switchman replied, “It was the engineer.” Notwithstanding the contention made that the statements were a subsequent narrative of the event and expressions of opinion as to how it occurred, etc., this court said that they were “the immediate expressions brought into play by the occurrences of the occasion.” witb wbicb they were connected^ and were properly received as a part of the res gestae

Though it may, therefore, be said that a portion of the declaration here was the statement of an opinion or conclusion, nevertheless that alone did not render it inadmissible. A statement or declaration of a conclusion or opinion, assuming, of course, that it was made spontaneously or instinctively and relating to the main event, may explain or characterize the transaction out of which it grows, and to which it relates, quite as well as a spontaneous statement or declaration of facts. This is well illustrated in the case of Johnson v. State, 8 Wyo. 494, 58 Pac. 761, where the deceased, immediately after the shooting, and upon being ashed how it occurred, said the defendant “shot me, but he did not intend to do it.” In State v. Sloan, 47 Mo. 604, where the deceased, while the surgeons were dressing his wounds, said to them that the defendant “ was not in fault.” In Shotwell v. Commonwealth (Ky.), 68 S. W. 403, where the deceased said, “I am shot all to pieces for nothing that I have done to be killed for.” In Fuller v. State (Tex. Cr. App.), 48 S. W. 183, where the deceased said that the defendant “shot me for forty cents.” In Selby v. Commonwealth (Ky.), 80 S. W. 221, where, in an affray, one who grabbed the pistol,- whereupon it was discharged, killing a member of the party, said, “Boys, you see that it was an accident.” In Young v. State, 149 Ala. 16, 43 South, 100, where in an affray, the deceased was shot, and the defendant and the crowd had ran away, a bystander and an observer said: “Come back, it was an accident.” In People v. McArron, 121 Mich. 1, 79 N. W. 944, where one who witnessed an affray, immediately after its occurrence, said, “Now, see what you have done!” In State v. Kaiser, 124 Mo. 651, 28 S. W. 182, where a bystander, while the assailants were still in sight just after leaving their victim, said: “Hurry up! They have about killed this man.” In Cross Lake Logging Co. v. Joyce, 83 Fed. 989, 28 C. C. A. 250, where the plaintiff, within a moment after the accident, addressing tbe superintendent, said, “I wouldn’t have lost my leg if you bad done as you agreed to and put another man in bis place.” In Coll v. Easton Transit Co., 180 Pa. 618, 37 Atl. 89, where an employee of tbe company whose ear ran over and killed the deceased said to a bystander, “I did not have time to get him off.” In Omaha & R. V. Co. v. Chollette, 41 Neb. 578, 59 N. W. 921, where a passenger was injured by tbe sudden starting of tbe train as be was alighting, tbe brakeman said, “It beats bell they cannot stop long enough to let people get off.” In Trumbull v. Donahue, 18 Colo. App. 460, 72 Pac. 648, where a brakeman, seeing a passenger’s injured band, said to tbe conductor, “Look what this door has done to this man’s band.” In Elledge v. Railway Co., 100 Cal. 282, 34 Pac. 720, 852, 38 Am. St. Rep. 290, where a cliff of rock fell, tbe foreman, when it came down, and tbe plaintiff and others were buried in tbe debris said, “My God! I expected that.” In Roberts v. Port Blakely Mill Co., 30 Wash. 25, 70 Pac. Ill, where tbe superintendent of tbe railroad, who arrived about three hours after tbe occurrence of tbe wreck, and in looking at tbe flanges, said: “This puts me in a devil of a fix. I can’t be putting new wheels under tbe cars all tbe time. If tbe company use any more Tacoma wheels, I will not work any longer for them.” In International & G. N. R. Co. v. Bryant (Tex. Civ. App.), 54 S. W. 364, where tbe engineer, shortly after tbe accident, said, “If be bad not applied bis air be would have killed tbe whole business.”

These cases are not cited, as erroneously assumed by Mr. Justice McCarty, to show the admissibility of declarations of bystanders or observers. I have already, in this opinion, expressed my views on that question, in support of which I cited, quoted from, and relied upon tbe text-writers, tbe cases cited by them, and those collected and reviewed in tbe notes found in 20 L. R. A. (N. S.) 133. Tbe last cases here cited by me are not cited in support of such a question,but, as stated, in my opinion, in support of my views that a declaration having all other essentials to render it admissible under tbe res gestae rule is not to be rejected because it is in the nature of an opinion or conclusion, and that such a declaration may quite as well explain or characterize the main event to which it relates as a declaration of fact. In all these cases, cited by me in support of such views, the declarations were admitted as a part of the res gestae; and in all of them, some more than others, the declarations were of the nature of either conclusions or opinions. They tended, however, to explain or characterize the transactions to which they related. So did the declaration here, though blunt and emphatic as a portion of it was.

Furthermore, the portion of the declaration, “Why did’nt you stop, before you ran over him ?” certainly is not an expression of an opinion or conclusion. And since the question was proper, if there was any portion of the answer which was not proper, a motion to strike that which was improper ought to have been made.

The question is asked that had a bystander (one who witnessed or observed the accident) or the engineer declared to the effect that the boy stepped immediately in front of the moving train, and that the accident was unavoidable, would that have been res gestae? If such statements had been made, and were spontaneous and instinctive utterances prompted by the immediate and present influences of the accident, and were not the result of reflection or design, and were not mere narratives (as some of the statements put by my associate seem to be), I readily answer it in the affirmative, and to that effect are. the cases: Little Rock Ry. & El. Co. v. Newman, 77 Ark. 599, 92 S. W. 864; Kansas City So. Ry. Co. v. Moles, 121 Fed. 351, 58 C. C. A. 29; M. K. & T. Ry. Co. v. Vance (Tex. Civ. App.), 41 S. W. 167; Keyser v. C. & G. T. Ry. Co., 66 Mich. 390, 33 N. W. 867; Springfield Con. Ry. Co. v. Welsch, 155 Ill. 511, 40 N. E. 1034; Hermes v. C. & N. W. R. Co., 80 Wis. 590, 50 N. W. 584, 27 Am. St. Rep. 69. It was so held in the cited case of Louisville R Co. v. Johnson, supra, where the statement of the motorman operating the car which ran over and killed the deceased that, “I seen his face and all, and tried to make the stop, but couldn’t make it,” was held properly received', but that tbe remark of the conductor to the motorman, “Keep your damned mouth still, and don’t make any statement until you are called upon to make it,” was improperly received because “it did not illustrate or explain how or what caused the accident,” and “was an idle speech that had no connection with the case, and did not throw any light on any phase of it.”

Whether the declarations make for or against one party or the other to the cause is not a determinative feature of their admissibility. They are alike admissible at the instance of either party. It is not essential that they be deserving. If shown to be admissible under the rule as stated, they may be received, though they might be wholly self-serving were they made under other circumstances. The basis of the rule is not admissions against interest, but trustworthiness of the statements, provable, not as the testimony of the declarant, but as a part of the transaction itself, like any other material fact or evidentiary detail.

I think no error was committed in the ruling complained of, and therefore concur in the judgment of affirmance.

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Concurrence Opinion

BRICK, J.

(concurring).

I concur with Mr. Justice McCARTY in the result reached by him and in all of his conclusions, except upon the question of res gestae. Upon that subject I agree with and indorse all that is said by the Chief Justice in his concurring opinion.