37 Neb. 235 | Neb. | 1893
’ The defendant in error filed his petition in the district court of Otoe county, Nebraska, alleging’ in substance, that qn the 26th day of December, 1889, the Missouri Pacific Railway Company received one Katharine Baier as a pas
The plaintiff in error filed a general denial,, and.further
Upon a trial of the issues had to a jury a verdict was rendered for the full amount prayed, and a motion for a new trial being overruled, judgment was entered on the verdict; to reverse which plaintiff in error filed its petition in this court.
On the trial of the case in the district court the plaintiff in error requested the court to give forty-nine instructions, and asked that the jury be required to answer twenty-nine interrogatories submitted for that purpose. The petition in error in this court assigns' seventy-nine alleged errors. In view of these facts no attempt will be made to consider seriatim the several matters complained of in detail, or in the order in which they occur.
Upon the trial there was offered in evidence and admitted over the objection of the defendant, the railroad company, a duly authenticated copy of the letters of administration upon the estate of Katharine Baier, issued in the usual form by the county court of Cass county, Nebraska, to Oswald Baier. It is insisted that the admission in evidence of this copy was error, for that it did not fall within the description of documents of which copies may be introduced under the provisions of section 408 óf the Code of Civil Procedure. This section reads as follows: “Duly certified copies of all records and entries or papers belonging to any public office, or by authority of law filed to be kept therein, shall be evidence in all cases of- equal credibility with the original records or papers so filed.” The certificate of the county judge by whom was issued the aforesaid letters of administration, and by whom a copy thereof under his seal was authenticated, recited that the said copy was a true and correct one of the letters of administration of the estate of Katharine Baier, deceased, as appeared from the original on.file in said judge’s office. This was sufficient
In argument it is insisted that it was error to permit the following question to be answered by the witness Johnson. His testimony had reference to the accident on account of which this suit was brought; following which evidence was this question and answer:
Q. Has there been any change since that time that you know of in making up trains?
Objected to, as incompetent, irrelevant, and immaterial and not a proper issue in this case. Overruled and exception.
A. I don’t know whether there is or not of my personal observation. I heard there had been a change.
There might be imagined circumstances under which a question of this character, followed by evidence of a certain kind, would be prejudicial to the railroad company. Upon what ground the existence of such prejudice is founded in this case is not apparent, for the argument of the plaintiff in .error is simply that the only effect of this evidence was to prejudice the defendant. We can observe no such necessary or even natural result of that kind which could arise upon either the question or answer of this witness.
It is insisted, on argument, that the district court should have sustained the motion of the railroad company to strike out all of the statements in the witness’s testimony relative to what Mrs. Baier told him of the accident, because it was hearsay, no part of the res gestae, and was very prejudicial to said company. The evidence complained of was given by James Johnson. It is as follows:
Q,. State how you came to be there at the depot that morning.
A. I brought some people down there from my house to take the train.
Q. Go on and state to the jury what you saw there in connection with this accident.
Q,. I will ask you if while you were helping her up there if the conductor came down there?
A. Yes, sir.
Q. Now I will ask you to state what Mrs. Baier stated at that time as to how the accident occurred.
Objected to, as incompetent, irrelevant, immaterial, hearsay, and no proper foundation laid. Overruled and exception.
(Examined by Waggener, attorney for railroad com* pany:)
Q. Had the train gone at the time she made this statement :
A. No, sir; the train had pulled up to the platform and .stopped.
Q. How long had the train been away from the spot where she was injured?
A. I don’t think the train had come to a stop when I got there.
Q,. How long after the scream until you heard this conversation ?
A. Could not have been, I think, two minutes.
Q,. First place Fenstermaker came with a lantern?
A. Yes, sir.
A. Yes, sir.
Q. You told him to go for a doctor?
A. Yes, sir.
Q. He did go ?
A. Yes, sir.
Q. You had the conversation with her after that?
A. Yes, sir. •
(Question by court:)
Q. Was the conversation at that time?
A. Yes, sir.
(Examination resumed by Wooley, attorney for defendant in error:)
Q. She told where she came from and who she was?
A. Yes, I asked her how she came to get off of the train and she told me her name was Baier and that she was from Nehawka, and she said the conductor had told her — had come into the car when they got to Weeping Water and told them to get out at Weeping Water and change cars for Lincoln. When the train stopped at the tank she supposed it was the place, and they got off, then the conductor told them it was not the station and they had better get back on the train and ride to the depot; she said she got on, but when she got on the steps the train pulled out and her husband and children had not got on the train, and then shé said when the train stopped in front of the depot she supposed it was the place to get off; she got out of the car and got on the steps, but just as she was in the act of getting off the steps the train made a jerk and she fell off.
It was of the ruling upon a motion to strike out this evidence as to what Mrs. Baier said that complaint is made in argument of the plaintiff in error. It might not be improper to observe at this point that the testimony shows without question that Mrs. Baier was immediately, after the above detailed circumstance, taken to a vacant storeroom in the town of Weeping Water, and that there both
From the above testimony it is apparent that the statements of Mrs. Baier were made immediately after she had received her injuries and before she had been removed from-the place where she had sustained them, and were explanatory of the occurrence of the accident.
In the brief of the plaintiff in error is cited Waldele v. New York C. & H. R. R. Co., 95 N. Y., 274, in which are grouped the holdings in several decisions bearing upon the question of evidence admissible as part of the res gestes. In¡ respect to those most analogous in facts the following language was used in said opinion, to-wit: “In Lund v. Tyngsborough, 9 Cush., 36, in view of the frequent recurrence of questions in regal'd to the admission of declarations claimed to be part of some res gestee, the court undertook to set forth, and illustrate with some particularity the principles and .tests by which such questions must be determined, and among other things said : ‘When the act of a party may be given in evidence, his declarations made at the time, and. calculated to elucidate and explain the character and quality of the act, and so connected with it as to constitute one-transaction, and so as to derive credit from the act itself,, are admissible in evidence. The credit which the act or fact gives to the accompanying declarations as a part of the transaction, and the tendency of the contemporary declarations as a part of the transaction to explain the particular fact, distinguish this class of declarations from mere hearsay.’ And further: ‘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 and principal fact or transaction, and only such declarations are admissible as grow out of the principal transaction, illustrate its character, are
In Commonwealth v. Hackett, 2 Allen [Mass.], 136, upon a trial for murder, a witness testified that at the moment the fatal stabs were given he heard the victim cry out “ I am stabbed,” and he at once went to him and reached him within twenty seconds after that and then heard him say, “ I am stabbed; I am gone; Dan Hackett has stabbed me.” This evidence was held competent as part of the res gestee, Bigelow, Ch. J., speaking of this-evidence, said: “If.it was a narrative statement, wholly unconnected with any transaction or principal fact, it .would be clearly inadmissible. But such was not its character; it was uttered immediately after the homicidal act, in the hearing of the person who was present ’ when the mortal stroke was given, who heard the first words uttered by the deceased, and who went to him after so brief an interval of time that the declaration or exclamation of the deceased may fairly be deemed a part of the same sentence as that which followed instantly after the stab with the knife was inflicted. It was not, therefore, an abstract or narrative statement of a past occurrence, depending for its force and effect solely.on the credit of the deceased, unsupported by any principal fact, and receiving no credit or significance from the accompanying circumstances. But it was an exclamation or statement, contemporaneous with the same transaction, forming a natural and material part of it, and competent as being original evidence in the nature of res gestes.”
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 occux'rences, but must have been made at the time of the act done which they are supposed to chax’acterize and have been well calculated to unfold the nature and quality of the acts they wei'e intended to explain; and so harmonize with them as to constitute a single transaction.”
In Tilson v. Terwilliger, 56 N. Y., 273, Folger, J., lays down the rule as to res gestee declarations as follows: “To be a part of the res gestee they must be made at the time of the act done which they are supposed to characterize; they must be calculated to unfold 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. There must be a transaction of which they are considered a part; they must be concomitant with the principal act and so connected with it as to be regarded as the result and consequence of co-existing motives.”
In Chicago W. D. R. Co. v. Beaker, 128 Ill., on page 548, the rule is thus stated: “The true inquiry according to all the authorities, is whether the declaration is a verbal act, illustrating, explaining, or interpreting other parts of the transaction of which it is itself a part, or is merely a history or a part of a history of a completed past affair. In the one case it is competent, iu the other it is not;” citing Mayes v. State, 64 Miss., 329; Waldele v. New York C. & H. R. R. Co., 95 N. Y., 274; Lander v. People, 104 Ill., 248.
Taylor says: “In all these cases the principal points of attention are whether the circumstances and declarations offered in proof were so connected with the main fact under consideration as to illustrate its character, to further its object, or to form, in conjunction with it, one continuous transaction.” (1 Taylor, Evidence [7th ed.], sec. 588.) The same author, after speaking of the change in the old rule, where there are connecting circumstances, goes on to say: “ Still an act cannot be varied, qualified, or explained éither by a declaration which amounts to no more than a mere narrative of a past occurrence, or by an isolated conversation held or an isolated act done at a later period.” There is not so much difficulty in the enunciation of the rule as in its application to the facts in each case under consideration. The consensus of the authorities seem to be, that a declaration to be a part of the res gestee 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. Again, if the subsequent declaration and the main fact at issue taken together from a continuous transaction, then the declaration is admissible. Applying these principles to the fact of the case at bar, there would seem to be no room for doubt that the declarations of Mrs. Baier, made under circumstances so nearly coincident in point of time with the accident itself, explanatory of its cause and history, were admissible as part of the res gestee.
' There appears in the bill of exceptions the following evi
Q. What was the condition of your wife’s health that morning when you left Nehawka?
A. She was in good health.
Q. State what was her condition from the time she was injured up to the time of her death.
A. She had both legs amputated, and it caused her death.
(On motion of defendant the words “it caused her death” were stricken out.) * * *
Q,. I will ask you what was the reasonable value of her work as housekeeper and the work she did?
Objected to, as incompetent, irrelevant, immaterial, and no proper foundation laid; no allegation in the petition of any damages of that character. Overruled. Exception.
A. I would not miss her for $25 a week for these chil-; dren.
■ (On motion this answer was stricken out.)
Q,. What I mean, what was the work she did there in-the way of saving you from having to hire a girl to do the work; what was the actual value of the work that was-performed by her?
Objected to, as incompetent, irrelevant, immaterial, and not within the issues in this case, and not a proper item of damages. Overruled. Exception.
A. I do not think I could get anybody to do the work for less than $5 per week, the work that she did.
The defendant moves to strike out the answer as not responsive to the question, incompetent, irrelevant, and immaterial, not within the issues in this case. Overruled. Exception.
It is argued that the court erred in admitting this evidence : First, because no special damages having been alleged specifically, none such could be proved; second, because the loss of services of the wife and mother was not
The suit was brought by Oswald Baier as administrator of his deceased wife’s estate. The petition alleged that Mrs. Baier left surviving her eight children, ranging from two to seventeen years of age, who were her only children and next of kin, and that said children were dependent upon her for a mother’s care and attention, and that said children had been otherwise injured by the death of Katharine Baier to the amount of $5,000. This action was brought under chapter 21, Compiled Statutes of Nebraska, of which the following is a copy :
“Section 1. That whenever the death of a person shall be caused by the wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maiutain an action and recover damages, in respect thereof, then and in every such case the person who, or company or corporation which, would have been liable had death not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.
“Sec. 2. That every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries, resulting from such death, to the wife and next of kin of such deceased person, not exceeding the sum of five thousand dollars; Provided, That every such action shall be commenced within two years after the death of such person.”
Another case cited for the same purpose is Pennsylvania Co. v. Lilly, 73 Ind., 252,, in which the victim was at the time of her death five years of age. The averment in the complaint was that “By reason of the said negligent, reckless, and willful killing of the said Emma, the plaintiff had been made to suffer great mental pain'and anguish, had been deprived of the happiness and comfort of her society, and thereby has suffered great damage.” It was held that the recovery by a parent for the death of his child could only be for the pecuniary damage he had sustained, the proper measure of which was the value of the child’s services from the time of the injury until majority attained, taken in connection with such child’s prospect of life, less the cost of support and maintenance. In a proper case a recovery could be had of the expenses for the care and maintenance of a child, funeral expenses, and medical services made necessary by the injury. This case was not merely one of a failure to properly allege special damages. It was one where no recoverable damages whatever had been stated.
To the same end counsel for plaintiff in error cites Cooper v. Lake Shore & M. S. R. Co., 66 Mich., 261. For the purposes of the case under consideration, the seventh syllabus of the case cited states with sufficient fullness the
, In Regan, Admr., v. Chicago, M. & St. P. R. Co., 51 Wis., 599, there was a general averment of danlages,which yias properly held, insufficient, for there should, have, been alleged a state of facts from which pecuniary damages were inferable. The statute under which the .case at bar was brought made this requirement, so that the case last cited aids but little in this inquiry. ...
In Ohio there is a statute almost exactly'the same in terms as chapter 21, Compiled Statutes of Nebraska. Under that statute it was held that a recovery might be had of an amount which it might reasonably be expected that the next of kin would have, received from the deceased had he lived, the expectancy of life being a proper subject of proof to that end. (Lyon’s Admr. v. Cleveland & T. R. Co., 7
In Steele, Admr., v. Kurtz, 28 O. St., 191, Ashburn, J., delivering the opinion of the court, said: “The phrase * next of kin ’ is a comprehensive one. Bouvier in defining it says: ‘This term is used to signify the relations of a party who has died intestate.’ ‘In general, no-one comes within this term who is not included in the provisions of the statutes of distribution,’ etc. As used in the statute it comprehends all those persons who are entitled to stand in the •order of inheritance under the statute of distributions in the case of personalty — 1, children; 2, husband or wife; •3, brothers and sisters, and so on.” Under the statute of Nebraska regulating the distribution of personalty the same persons would be entitled to shares of the personal property of the deceased as those above stated, though not in the same order. (Comp. Stats., ch. 23, secs. 30 and 176.)
In Wilson v. Bumstead, 12 Neb., 1, it was held that an action should be brought by the administrator; Maxwell, Ch. J., who delivered the opinion of the court, saying: “The object doubtless was to prevent a multiplicity of suits in cases where the next of kin were numerous, and to •make an equitable distribution of the amount recovered among all those entitled to the same.”
In Johnson v. Missouri P. R. Co., 18 Neb., on pages 699 and 700, occurs the following language in reference to a recovery had under this statute: “ If it should appear upon trial that the father suffered no damage in the death of the son, it is probable there could be a recovery -only for nominal damages. But it is said that the word ‘pecun-' iary,’ as used in our statute, is not construed in a strict sense. The damages are largely prospective and their determination committed to the discretion of juries upon very
Necessarily in the above review of authorities there could be no separate examination of the two points urged on behalf of the plaintiff in error on this branch of the case — first, of the necessity of more special pleading of damages, and, second, of the right to recover for loss of prospective services. Upon the last of these propositions, before a full examination of the authorities, the writer hereof at least entertained some doubts which have now been dispelled. The petition, especially in the absence of a motion to make more specific and certain, stated with sufficient particularity a cause of action under chapter 21, Compiled Statutes of Nebraska, to admit evidence of damages of the character above set out. It was competent under the averments of the petition to prove any facts which would show-any pecuniary loss to the next of kin of the deceased» resulting from her death. There was no error therefore in admitting evidence of the value of the services of the deceased in connection as it was given with proof of her' expectancy of life at the time she was injured.
In the instructions requested on behalf of the railroad' company it was insisted that the court should instruct the jury that if they found the existence of certain facts as indicated by the instructions, their verdict should be for the railroad company. This the court very properly refused to do. The existence of negligence, whether as a cause of action pleaded by the plaintiff or as a defense set up by the defendant, is a question of fact to be submitted to the jury
The record shows that the plaintiff in error specially excepted to that portion of instruction number four, given by the court, which makes the defendant liable to passengers for damage sustained through accident, and to each and every other part of said instruction. The instruction complained of is as follows: “As a matter of law you are instructed that the defendant railroad company is bound to carry its passengers without injury, and that said company is liable for damages suffered by passengers through accident while upon its trains which is not contributed to by the gross negligence of the parties injured. By gross neg
Section 3, article 1, chapter 72, Compiled Statutes, reads as follows: “Every railroad company as aforesaid shall be liable for all damages inflicted upon the person of passengers while being transported over its road, except in cases where the injury done arises from the criminal negligence of the persons injured, or when the injury complained of shall be the violation of some express rule or regulation of said road actually brought to his or her notice.”
In Omaha & R. V. R. Co. v. Chollette, 33 Neb., 143, the following instruction was approved by this court: “The term ‘criminal negligence/ as it is used in the statute above quoted, is defined to be gross negligence. It is such negligence as would amount to a flagrant and reckless disregard of her own safety and amount to a willful indifference to the injury liable to follow.” In his definition of the term “criminal negligence” the district judge in the case at bar only followed that adopted by this court. Counsel for plaintiff in error insist, however, that a rigid application of the terms of the above statutory provision was discountenanced in the opinion written by Maxwell, J., in McClary v. Sioux City & P. R. Co., 3 Neb., 44. That case was brought to recover damages caused by a sudden gust of wind blowing from the track the train upon which plaintiff was riding, the theory of plaintiff being that if the train had run on its schedule time it would have safely crossed the narrow strip devastated before the wind struck that part of the track where the wreck occurred. In the opinion it was properly said therefore that “Common carriers are liable only where the injury has arisen from their own neglect,” and as it was shown affirmatively and without question
These considerations of the 40th instruction requested by the plaintiff in error, and of the 4th instruction given by the court, fully meet the contentions urged against the instructions given, as well as upon those refused, so that a more extended examination of either class is rendered unnecessary.
The judgment of the district court is
Affirmed.