147 N.E. 315 | Ind. Ct. App. | 1925
Action by appellee to recover damages for injuries alleged to have been sustained by her decedent, John Scott who was her husband, such injuries being sustained on August 29, 1922, because of appellant's alleged negligence in the maintenance of its side tracks at the intersection of two streets in Michigan City.
The first paragraph of complaint alleged, in substance, that neither of the two streets involved is paved; for ten days prior to the accident, appellant carelessly and negligently allowed a large rut or hole to form in the ground in the traveled portion of the street between the ties of its tracks, which tracks extended four or five inches above the surface of the street; the hole was approximately a foot deep on the north side of the tracks, and in such close proximity thereto that it caused a step-off of approximately eighteen inches; by reason of the fact that the tracks extended above the surface of the earth, and by reason of the close proximity to the tracks, travelers approaching from the south and crossing the intersection with horses and wagons were unable to see said hole so negligently permitted to be formed and remain; on or about August 29, 1922, the decedent drove a team of horses hitched to a wagon upon the intersection and, being unable to see the rut, hole or gully, as he was crossing the street, when the wheel of his wagon dropped into the hole so negligently maintained and threw him out; causing him to fall beneath the wheels of his wagon, frightening the horses, causing them to lunge forward, and a wheel of the wagon ran over his neck and broke it; from which injuries, he died on October 20, 1922.
The second paragraph was substantially the same as the first. There was an answer in denial and a trial by jury which resulted in a verdict for appellee, on *360 which, after appellant's motion for a new trial was overruled, judgment was rendered. The error relied on in this court is the court's action in overruling the motion for a new trial.
Appellant first presents the question of the admissibility of certain declarations of Scott as res gestae. It appears by the evidence of Hilda Ruetz that she lived near the place where the accident was alleged to have occurred. Her mother, who was sick in the front bedroom of witness' home, heard groaning and called her. She was in the kitchen at the west end of the house, and she then came from the kitchen, through the dining room, to the front room, and out onto the porch and heard moaning, walked down the side walk to the south and saw Scott lying there, about 100 feet from the front of her house, and went to him. She asked him what she could do for him, and he mentioned three doctors' names and told her to call any one of them, she then asked him his name, which he gave and gave her also his telephone number, and asked her to call his wife. She picked up some money off the ground and told him she had it; he asked her to keep it, which she did, until his brother-in-law arrived, to whom she gave it. As soon as she returned to her home, she called Mrs. Scott, the wife, and then called Doctor Wilson. When the doctor came, not over twenty minutes later, he left his car a block away and walked over. Scott's brother-in-law, Mr. Jensen, arrived about five minutes after the doctor arrived. She understood from Scott that he did not wish her to call his son as he had been in the hospital.
Mrs. Scott testified that she received the telephone call from Mrs. Ruetz stating that her husband was hurt, and then telephoned her brother, who was a motorcycle policeman, to go over and investigate. She lived about two miles from the place of the accident, and her brother probably a mile therefrom. *361
Walter Jensen testified that he was at home when he received the telephone call from his sister. His home was about fifteen blocks from the place of the accident. When he arrived, he rode down the sidewalk in the sand as far as he possibly could, killed the motor, jerked it on the sand, and ran the rest of the way. He left the motorcycle possibly thirty feet west of the intersecting street.
William Westfall testified that when he arrived he saw Scott lying on the ground and heard him say "I am hurt." When he arrived, one Schultz was the only one there, and the brother-in-law arrived five or ten minutes later.
Fred Aicher testified that when he arrived where Scott lay, Schultz and Westfall were holding him. He was there about five minutes and then went over to the house that they were constructing, and doctor Wilson did not arrive until after he got to the house. The place where Scott was lying was about forty or fifty feet east of the east line of the street, and about 100 feet north of the railroad.
Jensen testified that when he arrived, he spoke to Scott and received no response and spoke again; that he was in a dazed condition. Jensen spoke in a medium tone of voice and Scott could hear and rolled up his eyes and answered. The witness was then permitted to testify, over the objection of appellant, that Scott said, in answer to the witness' question, that his neck hurt, and that he got jarred off the wagon at the tracks.
The doctrine of res gestae has presented a question most difficult to determine, and, as it seems to us, it would be better if the courts in determining its application 1, 2. could be left primarily to the circumstances of the case under consideration rather than to controlling precedents. Whether or not there was spontaneity of utterance in the declarations *362
sought to be given in evidence is of controlling force. If the circumstances surrounding the declaration are such that there is time or opportunity, for the formation of the declaration, it, of necessity, then loses its element of spontaneity and the declaration must then be held to be that of a fact of the past and not the verbal act of the present. Of the numerous cases sustaining this general principle, we cite Ohio, etc., R. Co.
v. Stein (1892),
Cases presenting circumstances so much like the instant case as to constitute controlling precedents are most difficult to find. In the case of Jones v. State (1880),
In Cincinnati, etc., R. Co. v. Gross (1917),
We cannot agree with appellee's contention that final decision as to the admissibility of such evidence is for the trial court, and that its decision is not subject to review. We are 3, 4. not unmindful of the holding in Cincinnati, etc., R. Co. v. Gross, supra, that, "Whether they (the statements) might be so considered was peculiarly for the trial court to determine under all the circumstances in issue" but we do not understand from that holding that such decision was not subject to review. In fact, the statement just quoted is followed by, "and the record fully sustains its decision." Thus, in that case, the Supreme Court passed upon the action of the trial court, approving it. *364 But in all of the cases in Indiana, and in the overwhelming number of them in other states, the admissibility of such evidence has been for the court and not for the jury. It was error for the court, by instruction or otherwise, to leave it to the jury as to whether it should consider such evidence.
Photographs and evidence were permitted to go to the jury as to the condition of the crossing at a time after the accident, and after certain repairs or improvements were made. Such 5-7. evidence was improper. Whether there had been negligent discharge of its duty to keep the crossing in proper condition must be determined from its condition at and prior to the accident, and not from the repairs made thereon thereafter.Chicago, etc., R. Co. v. Lee, Admr. (1897),
Appellant complains that it was not permitted to show, not only the small amount of traffic at the alleged place of the injury, but that there was a convenient way by which Scott could have avoided the dangerous crossing. We deem it unnecessary to discuss this question further than to refer the litigants to the well-reasoned case of Town of Gosport v. Evans (1887),
The judgment is reversed, with instruction to the court to grant a new trial. *365