142 Ill. App. 139 | Ill. App. Ct. | 1908
delivered the opinion of the court.
It is sought to reverse the judgment upon the grounds that the verdict is not justified by the evidence, and is against its manifest preponderance, that there was error in the admission and exclusion of evidence and that the court erred in refusing instructions requested in defendant’s behalf. There is conflict in the testimony and defendant’s counsel in their briefs review it at length. As the cause must be retried because of what this court deems reversible error in the admission of evidence, we refrain from considering the objection that the evidence does not justify the verdict and that the latter is against the manifest preponderance of the evidence.
Upon her direct examination the plaintiff stated that when she fell on the street, the conductor and others picked her up. She was then asked to tell what happened and started to relate what she stated the conductor said. She was interrupted by an objection made by defendant’s counsel and in reply to the objection her counsel urged that “what the conductor said right there is a part of the res gestae.” She was then asked how long it was after she fell when the conductor said what she had attempted to repeat and she testified that it was “right away afterwards, just a minute;” that it was “just a minute or two; I don’t know as it was that long; it was right away as quick as he could get to me; ’ ’ thatz ‘ I don’t believe it was a minute; it might have been; that is my best recollection.” She was thereupon permitted over the objection and exception of defendant’s counsel to state that the conductor “said that he caught my foot with his handle raising the lever and pulled me off; that is just what he said.” It is insisted that this alleged declaration by the conductor was no part of the res gestae. In this contention we concur. In C. &. N. W. Ry. Co. v. Fillmore, 57 Ill. 265-266, it was said to be error to allow the declarations of the conductor of a train, “made after the accident had happened, to be introduced to the jury;” that “whatever knowledge the conductor has as to the condition of the bridge at the time should have been stated by himself.” In C. W. D. Ry. Co. v. Becker, 128 Ill. 545-548, which was an action to recover for personal injuries resulting in the death of a boy, it was claimed that after the boy was thrown from a car and injured he got up and walked to a sidewalk and sat down, and that he then stated in answer to a question that the conductor threw him off the car. The alleged statements were admitted in evidence and the admission was held erroneous on the ground that “the declarations were not a part of the res gestae,” that “they • were made after the injury was received.” In Chicago City Ry. Co. v. Uhter, 212 Ill. 174-183, it is said: “An act or declaration can only be considered as a part of the res-gestae when it illustrates, explains or interprets other parts of the transaction of which it is itself a part.” Citing the Becker case, supra. In Pennsylvania Company v. McCaffrey, 173 Ill. 169, where it was held that a certain act was not a part of the res gestae because it took place some time after the accident occurred, we said: “That which occurs before or after the act is done is not a part of the res gestae, although the interval of separation is very brief. See also Montag v. The People, 141 Ill. 75.” In that case the court quotes with approval from G-reenleaf on Evidence, Vol. 1, Sec. 108, as follows: “The principal points of contention are whether the circumstances and declaration offered in proof were contemporaneous with the main fact under consideration and whether they were so connected with it as to illustrate its character.” In the case at bar, as was said in Chicago City Ry. Co. v. White, 110 Ill. App. 23-25, we are of opinion that the declaration referred to, alleged to have been made after the accident had occurred, cannot be regarded as a part of the res gestae; that “it was history and not a part of the accident.” Counsel for plaintiff cite among other cases claimed to support the contention that the alleged declaration under consideration was properly admitted as part of the res gestae Springfield Consolidated Ry. Co. vs. Hoeffner, 71 Ill. App. 162, the same case in 175 Ill. 634-643, and Springfield Consol’d Ry. v. Welsch, 155 Ill. 511. The conditions and the nature of the declaration alleged to have been made by the conductor in the case at bar differ materially from the statements held res gestae in those cases. In the Welsch case, moreover, the declaration of the motorman that “he could not reverse the car” as a reason why he did not stop it, had a direct bearing on the question of the defendant’s negligence, while the alleged statement in the case at bar to the effect that the conductor said he caught the plaintiff’s foot by raising the lever and pulled her off, do not relate to any defect in machinery but solely to an alleged explanation of an alleged act of the conductor himself. Such explanation made after the plaintiff’s fall appears in the nature of an apology to the plaintiff. It does not purport to be given in the exact words of the conductor, and a part of it at least—“pulled me off” —apparently purports to state a conclusion of the conductor formed as well as expressed after the accident had occurred. The alleged statement was, as said in Springfield Consol. Ry. Co. vs. Puntenney, 101 Ill. App. 95-98, “at best a mere recital of what had occurred, and its binding character as res gestae is therefore lost.”
For the reasons indicated the judgment of the Superior Court will be reversed and the cause remanded.
Reversed and remanded.