133 Minn. 257 | Minn. | 1916
The plaintiff’s intestate was killed in the railroad yards of the defendant at Willmar. The jury found that he was at the time employed by the defendant in interstate commerce. This finding is,not challenged. There was a verdict for the plaintiff. The defendant appeals from the order' denying its alternative motion for judgment or a new trial.
1. The deceased was working as a switchman’s helper. ITe was run over and killed by a ear shunted on to a sidetrack by a switching engine working on the lead. This switching engine was equipped with a road engine electric carbon headlight of 1500 candle power and used a reflector. The statute requires every locomotive operated in road service to be equipped with “an electric or other headlight of at least fifteen hundred (1,500) candle power, measured without the aid of a reflector,” and requires on “every locomotive engine regularly used in switching cars or trains a headlight of at least fifty (50) candle power, measured without the aid of a reflector.” G. S. 1913, § 4421. Of course this statute does not make the use of a 1500 candle power light" on switching engines unlawful or negligent. It recognizes the difference between the needs of a road operation and a switching operation. The negligence alleged is the use of a headlight of 1500 candle power with a reflector. Whether such use constituted negligence was submitted to the jury. The evidence is that such a headlight blinds and dazzles the eye so that one is unable to see objects distinctly or measure distances accurately. This is common knowledge. Switchmen work on and about the cars and engines in the yard and must be able to see clearly and to measure distances accurately. We are of the opinion that the jury’s finding of negligence is supported by the evidence.
2. The deceased had worked in the yards and about such headlights for a considerable time. The defendant claims that as a matter of law he assumed the risk of their use. The question of the assumption of risks was submitted to the jury and its finding negatived such assumption,.
3. The accident to the deceased resulted in the immediate loss of one arm and one leg. He lived about a week. To a fellow workman who was the first one to him a few moments after the accident he said, in response to an inquiry, using the language of the witness: “He says that — the car going in on 5 got him, and.I says * * * 'yon knew the car was going there, didn’t you,’ and he says, 'well’ — he says he 'didn’t see the car’ or ‘couldn’t see the car’ and that is all he said; and he says, 'don’t ask me any more but go and get me a doctor.’ ”. No question is made as to the admissibility of this testimony. It was clearly admissible. The deceased was taken in the caboose to the depot and was carried from there to the hospital. He reached there perhaps 15 minutes afteT the accident. The witness Walker, an old time friend, reached the hospital about the same time and testified as to what the deceased said. This testimony is the subject of exception. It is claimed by the plaintiff, to be a part of the res gestae. The exact time of the.conversation is not shown and no effort was made to fix it precisely. It is fairly to be inferred that it occurred within 30 minutes after the deceased reached the hospital — perhaps considerably earlier. The deceased was suffering intense pain and was crying for relief. .He was suffering from the shock incident to his injury and there was some attendant excitement. Walker, testifying to the conversation, said: “He said 'the light was so bright it blinded him and he couldn’t see and the car struck him;’ that was all he said in regard to the accident.” This statement was hearsay and self-serving. It tended to relieve the deceased of fault and to put blame upon the defendant. If admissible it is so because of the well-recognized exception to the hearsay rule.
There is no precise rule determining just when statements are part of the res gestae. The general doctrine is well enough understood; its application is difficult. It may accurately enough be said that there is no specific rule of precise application. In each case the application must depend upon the particular facts. State v. Alton, 105 Minn. 410, 117 N. W. 617, 15 Ann. Cas. 806; Hedlund v. Minneapolis St. Ry. Co.
of testimony claimed to constitute a part of the res gestae, the trial court determines whether unsworn statements are so accredited that they may go to the jury and be weighed and valued by it, and in determining this it considers whether the statements are spontaneous; whether there was an opportunity of fabrication or a likelihood of it; the lapse of time between the act and the declaration relating to it; the attendant excitement ; the mental and physical condition of the declarant, and other circumstances important in determining whether the trustworthiness of the unsworn statements is such that they may safely go to the jury. ' In reviewing the trial court’s ruling this court defers to its determination of the preliminary facts bearing upon the propriety of receiving the testimony. To this extent its admissibility is within the sound judgment of the trial court.
A considerable time, measured in minutes, elapsed between the accident and the decedent’s statements relative to it — a longer time than is usual when the application of the res gestae doctrine is sought. Time is an important factor. It is not always, but sometimes may be controlling. The lapse of time may give such an opportunity for fabrication that the testimony cannot be received safely, or in a particular case it may itself
Order affirmed.
Reported in 158 N. W. 232.
