51 Colo. 251 | Colo. | 1911
delivered the opinion of the court.
Plaintiff’s complaint alleged in substance that, while attempting to alight from one of defendant's cars, at the intersection of Fifteenth Street and Cleveland Place, after the car had been brought to a stop, but before she had an opportunity to completely get off, the car was negligently and carelessly put in motion and moved forward, and by reason thereof she was thrown to the pavement, and the bones of her left arm, wrist and hand fractured and broken in two or more places, her left shoulder sprained, bruised and disabled, .her back and hip bruised and wounded and her nervous system greatly shocked. To reimburse her for the damage thus sustained she prayed judgment in the sum of $10,000.00.
The defendant for answer denied these allegations, and set up the defense of contributory negligence, alleging that the plaintiff attempted to alight from the car before the same came to a stop, and before it was in the act of even slowing up, and also that in alighting from the car she stepped off with her face to the rear. The plaintiff had judgment for $1,520.00, and the defendant brings the case here to review that judgment on appeal.
The first error assigned goes to the admission by the court, as is alleged, of improper evidence on behalf of plaintiff, and the rejection of proper evidence offered by defendant.
The main contention under this head is that the court permitted the plaintiff, in order to sustain the allegations of her complaint to testify as follows:
*253 “Q. Well, now, what if anything further was said by the conductor in that immediate connection?
A. When he got me on my feet and he was still holding onto me, I said, ‘Oh, conductor, why did you throw me?’ and he let go of me then and turned and said to some of these men standing there and he said, T have been on the road so many years and this is my third accident,’ and he said, ‘Two of them have occurred since noon today,’ but he says, ‘This one wasn’t my fault, the motorman started the car without a signal.’
Q. State how soon after you were thrown on the pavement did this conductor make this remark which you have last stated ?
A. Well, it was within the time I have been telling you; I think it couldn’t have been over two minutes after I was thrown from the car when he said it.”
Upon motion, all of the answer having reference to other accidents and to the experience of the condutor was stricken by the court and withdrawn from the jury. That portion of the answer wher.ein the conductor said: “This one wasn’t my fault, the motorman started the car without a signal,” was premitted to go to the jury as part of the res gestae. It is earnestly contended that this evidence is incompetent, and that ijfc was reversible error to permit it to go to and be considered by the jury, upon any theory whatever. Also answers given to questions propounded to Dr. J. B. Kinley, one of plaintiff’s witnesses, were objected and excepted to, as follows:
“Q. At that time, (referring to the time the conductor was lifting the plaintiff to her feet) Doctor, did you hear the conductor say anything in regard to the accident?
' A. Yes, sir.
Q. You may state what he said.
A. He said, ‘Did you notice that the car started before I rang?’ ”
The general rule, upon the question of the admissibility of testimony as part of the res gestae, of such declarations or statements as are here objected to, is well stated in Louisville, etc., Ry. Co. v. Buck, 116 Ind. 566, as follows:
“It is not always easy to determine when declarations having relation to an act or transaction should be received as part of the res gestae, and much difficulty has been experienced in the effort to formulate general rules applicable to the subject. This much may, however, be safely said, that declarations which were the natural emanations or outgrowths of the act or occurrence in litigation, although not precisely concurrent in point of time, if they were yet voluntarily and spontaneously made so nearly contemporaneous as to be in the presence of the transaction which they illustrate and explain, and were made under such circumstances as necessarily to exclude the idea of design or deliberation, must, upon the clearest principles of justice, be admissible as part of the act or transaction itself.”
In Lund v. Tyngsborough, 9 Cush., page 42, speaking of statements such as are now under consideration, the court said:
“Such a declaration derives credit and importance, as forming a part of the transaction, itself, and is included in the surrounding circumstances, which may always be given in evidence to the jury with the principal fact. There must be a main or principal fact or*255 transaction, and only such declarations are admissible as grow out of the principal transaction, illustrate its character, are contemporary with it, and derive some degree of credit from it.”
In Rockwell v. Taylor, 41 Conn. 55, the rule was laid down thus:
“To make declarations admissible on this ground, they must not have been mere narratives of past occurrences, but 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 acts they were intended to explain and to so harmonize with them as to constitute a single transaction.”
In Tilson v. Tirwilliger, 56 N. Y. 273, Judge Folger laid down the rule as to res gestae declarations in this manner:
“To be a part of the res gestae they must be made ' at the time of the act done, which they are supposed to characterize; they must be calculated to uhfold the nature and quality of the facts which they are intended to explain; they must so harmonize with those facts as to form one transaction.”
In Missouri Pacific Rwy. Co. v. Baier, 37 Neb. 244, it is said:
“The consensus of the authorities seem to be, that a declaration to be a part of the res gestae need not be coincident in point of time with the main fact proved. It is enough that the two are so clearly connected that the declaration can, in the ordinary course of affairs, be said to be a spontaneous explanation of the real cause. The declaration is then a verbal act, and may well be said to be a part of the main fact or transaction.”
New York & Colo. M. S. & Co. v. Rogers, reported at page 6 of 11 Colorado Reports, is a case where the declarations of the defendant’s foreman, made some thirty or sixty minutes after the accident, as to the un
“The foreman was defendant’s agent in charge of the mine, and was upon the ground when the plaintiff was injured.' He proceeded at once to the shaft,' and directed the employes to fix the appliance in question. His remark was called forth by the accident, and was uttered while giving instructions with reference to that which plaintiff claims was its cause. * * * The declaration in question was not an idle statement, wholly disconnected from the principal fact. It tended to throw light upon the circumstances attending the injury, including the cause thereof, and to illustrate its character. We shall hold that there was no abuse of the ‘sound discretion’ lodged with the court in admitting it as part of the res gestae.”
In D. & R. G. R. R. Co. v. Spencer, 25 Colo. 9, upon the same line of reasoning, statements of decedent, although self-serving, and made several days before the accident, were held admissible as illustrative of his act in afterward going to the place of the accident, as being, in the language of Wharton, “part of the immediate preparation for, or emanations of, such act; and not produced by the calculated policy of the actors.”
The opinion in Pueblo Building Co. v. Klein, 5 Colo. App. 348, although stronger relied upon by the defendant as an authority for the exclusion of this evidence, upon full consideration and analysis, seems rather to support the propriety of its admission. In that case it is said:
“The general doctrine applicable to the question may be stated thus: The declaration offered in evidence must be either contemporaneous with the principal fact, or its natural and spontaneous outgrowth. It must be the instinctive, unmeditated utterance of the party while the impression produced by the event has*257 full possession of his mind. The connection between the statement and the fact must be such that the one is the evident interpreter of the other. Their relations to each other must be that of immediate cause and effect. When the two are thus connected, it does not matter that there is an appreciable lapse of time between them. Notwithstanding such lapse, the one is a continuation of the other, and both are parts of one transaction.”
No more perfect, complete or accurate description of the situation before us can be given than that found in the language just quoted from that opinion,-in which it is further said:
“In this case no connection whatever appears between the fall of the child from the elevator and the words spoken by the elevator boy. If, when the child fell out, he had immediately lowered the elevator to the basement, against the floor of which she struck, any exclamation he might have made upon first coming in sight of her body, and realizing the fatal result of the accident, would perhaps be considered as part of the transaction, and therefore competent.”
In the case of Trumbull, Receiver, v. Donahue, 18 Colo. App. 460, a suit for damage for injury to a man’s hand, crushed in the closing door of a car, the declaration of the brakeman, made directly after the accident, to the conductor, “Look what this door has done to this man’s hand.” and his further statement to the plaintiff, “Turning that curve throwed your hand off,” were both held admissible under the authority of Building Company v. Klein, supra, as being the natural and spontaneous outcome of the principal fact and constituting an entire transaction.
If the declarations and statements of the conductor in the case at bar were not the natural and spontaneous outcome 'of the main or principal fact, forming a material part of it, and competent as original evidence in the nature of res fiestae, then there can be no such
Under the head of improper evidence admitted and proper evidence excluded there are no other matters urged which are regarded as being sufficiently important to require discussion.
The defendant requested the court to give instruction number 9, as follows:
“The court instructs the jury that in Colorado, by statute, the plaintiff is allowed to testify in her behalf, but in considering her evidence you are to bear in mind the fact that she is the plaintiff and directly interested in the result of the action.”
And the court declined to do so. Of this refusal complaint is made by the defendant. It is unnecessary to consider or pass upon the question whether such refusal would have been error had no other equivalent instruction been given, but as this point was clearly covered by what the court said, first, in instruction number 5, wherein it advised the jury that the weight of evidence was, among other things, to be determined by
Much argument is,offered against certain instructions given, and it may be that, seggregated from the charge as a whole, purely technical objections might be successfully urged to some one or more of them. Almost no case of any considerable importance has ever been tried in which complaint might not, with equal force, have been made of isolated instructions, considered only disconnectedly. But the charge, as a whole, is comprehensive and full; it correctly states the law of the case and treats the defendant absolutely fairly; there is nothing whatever in the instructions of which it can justly and properly complain.
It is finaly urged and argued at great length that the verdict of the jury is contrary to the weight of the testimony. This argument is made in face of the fact that there are decisions by this court, almost without
Judgment affirmed.