69 Neb. 456 | Neb. | 1903
This action was brought by the next friend of Grover C. Pledger, whom we shall hereafter call the plaintiff, to recover damages for personal injuries alleged to have been sustained by the plaintiff by the wrongful acts of the defendant.
The answer*, in effect, admits that the plaintiff sustained the injury alleged in the petition, but alleges that it was occasioned by the misconduct, carelessness and negligence of the plaintiff and without any fault or negligence on the part of the defendant. It appears from the evidence that the plaintiff boarded the defendant’s train at Hastings and concealed himself on the front platform of the first passenger car, to avoid paying his fare. He thus rode until the train reached Minden, which was about 9:80 P. M., when the accident occured. As the train upon which he had been riding was leaving Minden, he was found lying beside the railroad track, with one of his legs so mangled that it was necessary to amputate it below the knee. Whether the accident was the result of his being pushed from the train by one of the defendant’s employees, was
The plaintiff was present at the trial and took the stand as a witness on his own behalf. He testified that the accident was the result of his being thrown from the train by one of the defendant’s employees. He then offered to prove by three different witnesses that they arrived at the place where he was lying, not exceeding a minute after the accident occurred, that they heard exclamations of pain and that someone asked the • plaintiff: “Were you on that train?” And he responded: “Yes, and the brakeman pushed me off, and I believe my foot is cut off.” This evidence, was excluded on the ground that the declarations of the plaintiff, at that time, were no part of the res gestee and the ruling of the court in that behalf is now assigned a.s error.
It would unduly extend this opinion to attempt a review of the authorities on the question of the admissibility in evidence of declarations as a part of the res gestee. The leading authorities on this question are reviewed in 1 Rice, Evidence, 362, et seq. A large number may also be found in the note to People v. Vernon, 35 Cal. 49, 95 Am. Dec. 49. From the numerous and conflicting authorities this court has deduced two rules, which appear to us sufficient for present purposes. In Union P. R. Co. v. Elliott, 54 Neb. 299, the rule is thus stated by commissioner Ragan, and approved by this court:
“A declaration or admission, to be competent evidence. as res gestee, must be made at such a time and under such circumstances as to raise the presumption that it is the unpremeditated and spontaneous explanation of the matter about which made.”
In Hewitt v. Eisenbart, 36 Neb. 794, this court, speaking through Ikvine, C., say:
*460 “The trial court must he permitted to exercise its discretion, very largely, in determining whether the declarations were "made under such circumstances as to permit the inference that they were genuine expressions, and the jury must he left to determine whether or not such inference shall be drawn.”
In Omaha & R. V. R. Co. v. Chollette, 41 Neb. 578, the foregoing language is reiterated. The doctrine announced in the last two cases has the support of Greenleaf, who, at sec. 108, vol. 1, of his celebrated work on Evidence, says:
“The surrounding circumstances, constituting parts of res gestamay always be shown to the jury, along with the principal fact, a.nd their admissibility is determined by the judge, according to the degree of their relation to that fact, and in the exercise of his sound discretion.”
The discretion of the presiding judge in such cases, however, must not be understood as an absolute discretion to be exercised arbitrarily, but as a legal discretion, the abuse of which would constitute reversible error.
Satisfied with the foregoing- rules, the question presented in this case is, whether the exclusion of declarations in question was an abuse of discretion. We do- not think it Avas. The plaintiff was before the court and testified to the facts showing how he claimed to have received the injury. His testimony shows that he was not an entirely artless witness; that, although but sixteen years of age, he had traveled over a considerable portion of the country, concealing himself on railway trains, to avoid paying his fare, and that he was thus traveling, or attempting to travel, at the time the accident occurred. Under such circumstances, it would be rash to assume that his declarations, made after the injury, we u the natural and spontanéous expressions of the truth, rather than an attempt to shift the responsibility for his injury to the shoulders of another, to excite sympathy or for other ulterior purposes. It is urged, however, that suffering as he was from a frightful injury at the time he made the declaration, it is
We have not overlooked the case of Missouri P. R. Co. v. Baier, 37 Neb. 235, wherein the declarations of an injured party remote, perhaps, in point of time, as those under consideration, were admitted in evidence as part of the res gestee. We can only say of that case, as we have said of this, that, whether such declarations should have been admitted, rested largely in the discretion of the trial court, and, having been admitted, this court held, that the circumstances under which they were made warranted their admission. Resides, in that case, the injured party died shortly after the injury, and could not be produced as a wdtness on the trial. That fact, in itself, would not render evidence of such declarations admissible, but it is undoubtedly proper to be taken into account by the trial court, in the exercise of its discretion as to the admisssion of such evidence. Travellers Ins. Co. v. Mosley, 8 Wall. (U. S.) 397.
The following instructions — the first at the request of the defendant, the other by the court on its own motion — ■ were given the jury:
“You are instructed by the court, if you find from the evidence that Grover G. Pledger on the 24th day of August, 1900, was on the front platform, of one of the passenger*462 cars of a train operated by the defendant company, with the intention of riding upon said train without paying any fare, then and in that case he was not a passenger upon defendant’s train and the defendant railroad company, as a common carrier, owed him no duty.”
“It is the duty of a person when traveling upon a railroad from one station to another to enter the passenger coaches provided for the carrying of passengers and to remain therein while such train is in motion, and to procure, prior to the entering therein, a ticket from the agent of said company or, if such ticket be not purchased, then to pay the conductor on said train the proper and legal fare. A person doing this and not guilty of misconduct on said train, would be a passenger and the railroad company would be bound under the law to properly care for and attend to the necessary and reasonable conveniences and wants of such passenger and would be prima, facie liable for any injury that such passenger received while so traveling. But a person riding on the outside of such passenger train, whether on the platform or some other place without, or on parts of the baggage car, for the purpose of obtaining a ride on such train without the payment of any fare therefor, would not be a passenger upon such train, but would be a trespasser thereon and such railroad would owe no duty to such person, and the employees of such company would have the right to put such person off the train and the railroad company would not be liable therefor unless such removal was done in a reckless, careless or negligent manner and the injury, if any, was the result of such negligence.”
The plaintiff contends that the foregoing instructions are erroneous, because they ignore the rule that a railroad company is bound to use due care, even in removing a trespasser from its trains, and is liable in damages for any injury resulting to a trespasser from an omission of such duty. Such is undoubtedly the rule. Kansas City, Ft. S. & G. R. Co. v. Kelly, 36 Kan. 655, 14 Pac. 172; Johnson v. Chicago, St. P., M, & O. R. Co., 116 Ia, 639, 88 N. W. 811;
“If you find from the evidence that the plaintiff was traveling upon the train in question, and that for the purpose of avoiding the payment of fare he wa.s riding upon the platform of one of said cars, or other place outside the passenger coach, then the employees of the defendant would have the right to use all force and power necessary to overcome any resistance that might be offered, but they would not have the right to remove him, or push him off, or require him to jump off, at a place where it was unsafe to get off, or at a time when the train was running at such rate of speed that it would be unsafe for a person to get off, and if you find that the plaintiff has established, by a preponderance of the evidence, that the brakesman on said train, or other employee thereon, did push the plaintiff off said train, at a place where it was unsafe to jump off, or at a time when the train was running at a speed when it made such act dangerous, and that the plaintiff was injured thereby, then your verdict must be for the plaiutff.”
In three other instructions, the foregoing language, touching the duty of the defendant to the plaintiff, even if the latter were merely a trespasser, is, in substance, reiterated. From the charge, taken as a whole, we are satisfied that the jury could not have failed to under
The defendant requested and the court gave the following instruction:
“You are instructed by the court, it is your imperative duty to try this case and decide the same, as if it were a suit between two individuals. The fact that the person injured Avas a boy and the defendant a corporation, should make no difference with you in the trial of this action. In considering and deciding this cause, you should look solely to the evidence for the facts and the instructions of the court for the law in the case, and find your verdict accordingly, without any reference to Avho is plaintiff and who is defendant. The fact that the plaintiff has brought suit in this action constitutes no ground Avhatsoever on which to base the presumption that he is entitled to a verdict against the defendant. That he is a poor boy constitutes no reason Avhy the plaintiff should be .entitled to a verdict. All these things are outside of what you are to consider.”
The plaintiff objects to this instruction, because it gives too much prominence to the situation of the parties, and claims that it tended to admonish the jury that they were likely to be criticised if their verdict should be for the plaintiff. We do not think the complaint is well founded. It is the theory of the law, that the verdict of a jury shall be based exclusively on the evidence and the instructions of the court. Such being the law, sympathy has no more legitimate place in a verdict, than in the demonstration of a proposition in Euclid or an experiment in chemistry. This is Avell knoAvn, but at times there is danger that it may be overlooked; and Avhen the trial court feels that such danger exists, there can be no doubt of the propriety of reminding the jury, that in an honest and legitimate search for the truth, sympathy has no place. Another objection to this instruction is based on the closing sentence: “All
The plaintiff also complains of the fourth instruction, given at the request of the defendant. It is as follows:
“One who is injured by the negligence of another can not recover damages therefor if the injured party, by his own negligence or wilful Avrong, approximately contributed to the injury so that it would not have happened bul. for his own fault. If, therefore, you find that said Grover O. Pledger, by his oavu carelessness, substantially con- . tributed to the injury, or that he might, by the exercise of ordinary care, such as a prudent person generally vvould have used under similar circumstances, have avoided the injury, he cannot recover damages.”
It is urged that this instruction permitted the jury to infer that boarding the car, as the plaintiff was shewn to have boarded it, was such fault or wrong as would prevent a recovery in this case, notwithstanding the defendant Avas guilty of the wrongful acts charged. The instruction must not be taken .as standing alone, but in connection Avith the rest of the charge and the record. The theory upon which tire plaintiff asked a recovery Avas, that he had been pushed from the moving train by one of the defendant’s employees, and fell or rolled, so that the wheels of the car passed over his leg. As we have already seen, the jury were fully instructed upon this theory, and, that the defendant had no right to remove him from the train in such a way, or under such circumstances as to endanger his life or person One theorv of the defendant was, that the
The second instruction given by the court on itsi own motion is criticised because the jury were thereby directed to consider all the evidence offered in the case. Of course, the jury should have been instructed to consider only such evidence as had been received. But the plaintiff has pointed out no evidence offered which, if considered by the jury, would have been prejudicial to him. On the contrary, the only evidence to which our attention has been called, which was excluded, was the declarations of the plaintiff hereinbefore referred to and which the plaintiff insists should have been received in evidence and considered by the jury. He certainly is not in a position to complain, if the jury, acting upon this instruction in question, considered that evidence. Besides, the likelihood that the jury could have been misled by the instruction, to us, appears exceedingly remote.
Complaint is made of the fifth paragraph of the charge to the jury, because the jury were thereby instructed that if the plaintiff, in running to catch the train, or in attempting to get on the platform or other part of the train for the purpose of avoiding the payment of car fare, fell
Another criticism of this instruction is, that there is no evidence that the plaintiff was running and trying to board'the train. This is a mistake. One witness, a passenger on the train, testifies to having seen someone running at the side of the train just before the accident. The circumstances detailed, taken with other facts in the case, were sufficient to warrant the inference that the person thus running was the plaintiff, and were a sufficient basis for the instruction.
Misconduct of the jury is one of the errors assigned for reversal of this case. It is claimed that such misconduct is shown by affidavits filed in the district court. They have not been pointed out in the bill of exceptions, nor in our examination of it have we been able to find them there. It is well settled, that affidavits, to be available in this court, must be incorporated into the bill of exceptions. As they were not thus preserved, we are unable to determine whether there was.misconduct on the part of the jury.
We find no reversible error in the record, and it is therefore recommended that the judgment of the district court be affirmed.
Affirmed.