38 A.D. 398 | N.Y. App. Div. | 1899
This action was brought to recover damages for the death of the-plaintiff’s intestate, resulting from an injury which is alleged to have been caused by her falling into a coal hole in the sidewalk in front of the defendant’s premises. The complaint charges that the defendant maintained the coal hole open and not securely covered, and that, in consequence thereof, the plaintiff’s intestate, without any fault on. her part, fell into the same. The defendant answered admitting-the ownership of the premises, and of the coal chute in front of the-same, but denied that the coal hole was open or insecurely covered. The only evidence given on the trial as to. the details of the accident was by the witness Mrs. Delaney, who was a tenant on the premises. On the occasion of the accident, the deceased came to visit the witness. About dusk the deceased left the house, the witness accompanying her to the sidewalk. From this point the testimony is: “ That moment I turned around my back from her, and the first thing she screamed. She said, ‘ My God.’ I rushed out and put my hands under her head •—under her neck. She said, £ Never mind my head; my leg is in the scuttle-hole, and it is broke.’’
From this narration of the evidence it appears that the sole question in the case is whether the declaration of the deceased was sufficient to justify the jury in finding that the coal hole was either open or insecurely covered at the time of the accident, for this w'as the- only ■charge of negligence made against the defendant. We are of opinion that the declaration of the deceased was admissible in evidence as part of the res gestee, within even-the most restrictive authorities. It .was descriptive of her condition and situation at the very time ■she made the statement, and, therefore, contemporaneous. In this respect it is a stronger case than that of Commonwealth v. Hackett (2 Allen, 136), where the declaration was made after the fatal wound was inflicted and when the defendant was absent. , The Haelcett ■case is cited with approval in Waldele v. N. Y. C. & H. R. R. R. Co. (95 N. Y. 274). But though the declaration of the deceased was competent evidence, the question still remains whether it alone was sufficient to authorize the jury in finding the fact that the leg ■of the deceased had ■ fallen through the opening of the coal hole, for I am frank to say that if the evidence was sufficient to authorize a finding of this fact, then it authorized the submission of the question of the defendant’s negligence to the jury, because in such ■case it seems clear (or, at least, the jury might so find) that if the hole had been securely covered the plaintiff would not have fallen in it.
The admissions of declarations as part of the res gestae, and the •effect of such evidence, have'been the subject of much conflict .among the courts and among text writers. Insurance Co. v. Mosley
Declarations admitted as part of the res gestae may be divided into three classes : Th& first is where they constitute a part of the transaction itself which is sought to be proved; the second is where they tend to qualify, explain or characterize the acts which they accompany ; the third is where the declarations are made at the time of the transaction, but relate solely to the acts and conduct of others. The text books and decided cases justify the admission of all these declarations on the same ground as being part of the res gestae, But it is apparent that, logically and on principle, the admission of declarations of the third class must stand on a different ground froto that which supports the admission of the two other classes. If a man, being wounded, calls out, “ John has stabbed me,” the declaration in no way qualifies or explains the act of the person who stabbed him. In reality testimony to the declaration is pure hearsay, and is admissible in evidence only upon .the great improbability that the spontaneous utterance of the instant should be false. However, such declarations being received in evidence as part of the res gestas, they must be subject to the same rule as applies to other declarations forming part of the res gestae. In Lund v. Tyngsborough (9 Cush. 36, 42) it is said in reference to these declarations: “ 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 ¡irineipal fact or transaction; and only such declarations aré admissible as grow out of the principal transaction, illustrate its character, are contemporary with it, and
- The judgment appealed from should be affirmed, with costs.
Judgment unanimously affirmed, with costsl