131 Ky. 277 | Ky. Ct. App. | 1909
Opinion Of the Court by
Affirming.
On the night of August 11, 1907, Alonzo Dow Johnson was struck and killed by one of appellant’s street cars just outside of the city limits of Louisville, while on Ms way to the city in company with a large crowd of people who had been spending the evening at Fountain Ferry Park, a pleasure resort near the city. For some reason, street car traffic was delayed, and a number of persons started to walk into the city in the road over which, the street cars run. They had gone some distance1, when a large motor car carrying a trailer came along. These cars were crowded with people, and, according to the testimony of several witnesses, were running at an unusually high rate of speed at the time Johnson, who was in the road' with the other people, was struck. The theory of appellee is that Johnson was struck by the front end or fender of the first car; while appellant contends that he was walking on the roadway adjacent to the track and in no danger from the cars, but that, after the front end of the car had passed him in safety, he ran into, or
It is complained that the court erred in admitting incompetent evidence and in rejecting competent evidence, in giving instructions to the jury, and that the verdict is not sustained by the evidence. Taking up these points in the order named, the first error assigned is in permitting W. H. Kahl and F. J. Owens to testify as to the statements made by the motorman and conductor in charge of the car immediately at the time of the accident. These witnesses said they were present in the crowd that was walking up the street when the accident occurred, and were’ among the first persons to go to Johnson after he was struck; that about the same time they reached the body, the conductor and motorman came up, and they said’ to the motorman, “You have killed a man back there,” and the motorman said, “Well, I seen the man, I seen his fate and all, and tried to make the stop, but couldn’t make it,” and the conductor said1 to the motorman, “Keep your damned mouth still, and don’t make any statement until you are called upon to make one. The conductor and motorman both denied that they made the statements attributed' tc\ them, which were admited as evidence over the objection of appellee; the trial court holding that the testimony was competent as. a park of the rest gestee. It is not seriously contended that these statements were not made close enough to the time of the accident to be admissible as a part of the res gestse, but it is insisted
No hard and fast rule can be laid down as to the admissibility of evidence as a part of the res gesta*. The facts and circumstances of each case are different, and the courts have come to the point of adjudging this question as it is presented by the particular case under consideration. This is well illustrated in the numerous decisions that may be found on the subject, as it is by the further fact that'the courts are not harmonious in their treatment of the principle upon which the admissibility of the evidence rests. In some jurisdictions a liberal practice prevails, while in others the ancient rule has not been relaxed. But, generally speaking, the rule in this State is that declarations which would otherwise be incompetent to be admissible as a part of the res gestae must be made by one of the actors in the affair, contemporaneous in point of time with the principal transaction under consideration, be made at or near to the place of its occurrence, and illustrate or explain how or what caused it to happen; but, if a declaration is so far removed in point of time from the main fact under investigation as to make it a mere narrative of a transaction that has happened, or if it does not illustrate or explain the principal fact, or was made at some distance from the place of its occurrence, or by a bystander or third party, the declaration is not admissible as substantive evidence or as a part of the res gestae. Grreenleaf on Evidence, section 107; Elliott on Evidence, volume 1,
The defendant company offered to prove by a witness that, immediately after the accident, he got off the car before it stopped and went to the place where the body of deceased was lying, and heard a man who was in the crowd surrounding the body, but whom he did not know, say, not in answer to any question, but as a spontaneous exclamation, “No wonder he was hurt, the way you fellows were wrestling.” The trial judge refused to admit the statement heard by this witness, and of this ruling appellant complains. In support of the proposition that this evidence was competent, our attention is called to L. & N. R. R. Co. v. Carothers, 65 S. W. 833, 66 S. W. 385, 23 Ky. Law Rep. 1675. That was an action brought by a passenger on. a train to recover damages for personal injuries received in a collision, and it was said: “The fact that there were exclamations, outcries, or screams by the other passengers may be shown as part of the res gesta:; but the particulars of what they said do not seem to have been material to any issue in the case. The opinion in the Simpson case was intended to go no further than this, and the opinion in this case is modified to this extent.” In the Simpson case (L. &
In our opinion, it would be a dangerous enlargement of the res gestae rule to permit the dleidarations of bystanders in cases like this to be received as evidence. It would open wide the door for the admission of reckless or thoughtless or ill-considered exclamations, and at the same time would put it out of the power of the party whose interest they adversely affected to investigate, impeach, contradict, or explain the situation, temperament, character, or position of the declarant. To permit a person to testify that he heard a bystander state how or what caused an accident would sanction the admissibility of hearsay evidence of the most unreliable and unsatisfactory character. The declarations of agents and servants of a corporation, for whose acts the principal is responsible, when brought within the res gestae rule, are permitted to be introduced for the purpose of fixing liability upon the principal, and upon these statements, if they are sufficient to sustain a verdict, the jury may rest their finding. And so the declarations of a party injured, if brought within this rule are competent in his behalf; but, to these actors in the occurrence, the admissibility of evidence as a part of the res gestae should, except in rare cases, be limited. The bystand
The next complaint is that the court erred in saying to the jury, as a part of instruction No. 1, that it was the duty of the motorman “to keep a lookout ahead for persons on the track, or so near thereto as to be in danger of being injured by the car.” There is no merit in this criticism. It is the duty of a motorman, from the time and immediately before the car starts, until it comes to a stop, to be constantly on the lookout for persons and vehicles on the track, or so near thereto as to be in danger of being injured by the car; and this duty has been repeatedly declared by this court.
There was sufficient evidence to support the verdict, and the judgment is affirmed.