Steinhofel v. Chicago, Milwaukee & St. Paul Railway Co., 92 Wis. 123

Steinhofel v. Chicago, Milwaukee & St. Paul Railway Co.

92 Wis. 123 | Wis. | 1896

Newmajj, J.

A short time after the accident, — from thirty to sixty minutes afterwards,— and before Olivia Olson had ' been removed, a witness (John Johnson) arrived, and had •some conversation- with her in regard to the accident. On the trial he was asked, “ "What, if anything, did Miss Olson .say to you in regard to it? ” The question was objected to as incompetent, and the objection was sustained. It is now urged that Olivia Olson’s narration of the circumstances of the accident, as then given to the witness Johnson, including defendant’s omission to sound the whistle and ring the bell, was competent as being a part of the res gestae. If not a part of the res gestae, their narration would be simply hearsay, and, as such, inadmissible. Pes gestes, are defined, generally, as the facts surrounding or accompanying a transaction or occurrence which is the subject of legal investigation. They are not themselves the facts which constitute the transaction or occurrence itself, but such as attend it and .give character to it. “ The idea of the res gestes presupposes .a main fact or principal transaction, and the res gestes mean the circumstances, facts, and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character.” Hermes v. C. & N. W. R. Co. 80 Wis. 590. Declarations, in order to be res gestes, must be contemporaneous with the main fact. If they amount to no more than a narration of a past occurrence, they are mere hearsay and not admissible. 1 Greenl. Ev. § 110; 21 Am. & Eng. Ency. of Law, 101, and cases cited in note 1. It is evident that this statement of Olivia Olson was too far re*129moved from the time of the accident to be contemporaneous with it in any true'1 sense, and was a mere narration of a past occurrence. It was not error to exclude it.

The issues involved in the trial were: (1) Whether the defendant gave warning of the approach of its train to the crossing where the accident occurred, by sounding its whistle and ringing its bell.. Failure to give such warning would make it liable for such damages as should occur in consequence of the omission. And (2) whether the deceased was negligent in any matter which contributed proximately to produce the accident. For, if the negligence of the deceased so contributed to produce the accident, the plaintiff cannot recover, although the defendant may have been negligent; in failing to give the warning; for it is well settled that any want of ordinary care on the part of' the party injured, which contributes to produce the injury, will defeat a recovery. Randall v. N. W. Tel. Co. 54 Wis. 140; Williams v. C., M. & St. P. R. Co. 64 Wis. 1; Bloor v. Delafield, 69 Wis. 273; Schoenfeld v. Milwaukee City R. Co. 74 Wis. 433.

Whether the evidence was sufficient to sustain a verdict against the defendant on the first question is not altogether clear. Whether the testimony of witnesses .whose attention was called to the noise of the train, and who were listening to it, who testify that they did not hear a signal, is to be classed as “merely negative testimony,” and as “a mere scintilla of evidence,” may be doubted. Joannes v. Millerd, 90 Wis. 68. It may be assumed, for the purposes of the decision, that the evidence was sufficient to take the question of the defendant’s negligence to the jury. Then it remains to be considered whether the case was so clear and decisive on the question of the contributory negligence of the deceased as to justify the court in taking the question from the jury. For, no doubt, .the proof of contributory negligence must be clear and decisive, so as to leave no room for unbiased1 and impartial minds to come, to any other conclusion, in *130order to warrant an absolute direction to the jury on that ground. Valin v. M. & N. R. Co. 82 Wis. 1.

The deceased was bound to the exercise of ordinary care and attention to his surroundings, in order that he might make his journey safely. This amount of care was due, not only to his own preservation and that of his associates, but to the defendant also. If, by the exercise of such ordinary care and attention,— if, by using his eyes in looking and his ears in hearing,— he could have prevented or avoided the accident, the failure to use such care and attention is such contributory negligence as will defeat the action. It does not appear that the deceased knew that there was a railroad crossing at the place of the accident. But the road on which he was traveling ran in the same direction as the railroad, — . in many places parallel with it,— and crossed it several times before reaching Racine. He had lived many years at Racine, and may fairly be presumed to have had general knowledge that the country between Union Grove and Racine was traversed by several railroads. Ordinary care required him to heed these facts. The night was somewhat dark, and the road was unfamiliar.' These facts, of themselves, should have inspired caution. But though witnesses speak of the unusual noise of the train, and the direction of the wind was favorable for carrying this noise to them, this party heard nothing of it. The witness Bristol heard the noise of the train, and stopped his team. The headlight was visible, and almost directly in the faces of this party, for a considerable distance, yet none of them saw it until too late to avoid the accident. They seem to have been utterly oblivious and inattentive' to all surrounding objects and conditions, and went heedlessly to death. Williams testifies: “ I heard no noise. Everything seemed to be quiet, with the exception of the buggy rattling. The buggy rattled a little.” “We jogged along without paying any attention to anything, except to see that the horse was in the ■road. *131Let the horse go as he pleased.” When, suddenly, Olivia Olson “ gave a scream and jumped forward,” Williams saw' “ a flash of light,” and it was all over. It is considered that the evidence shows a clear and decisive case of contributory' negligence, amounting very nearly to recklessness. It was not error to direct the verdict for the defendant.

A motion for a new trial on the minutes of the court, pending at the close of the term, was held for argument after the term, by stipulation of the parties, and not decided until after the expiration of more than sixty days after the rendition of the verdict. Inside of thirty days after the motion was decided, the defendant applied to the clerk to have the costs taxed and inserted in the judgment. The clerk refused to tax them. On appeal from the clerk the court directed the defendant’s costs to be taxed, and they were afterwards, after the expiration of the thirty days, taxed. This is alleged as error. Sec. 2894a, S. & B. Ann. Stats., in substance provides that, if the successful party fails to enter and perfect his judgment within sixty days after the rendition of the verdict, he shall be deemed to have waived his right to costs in the action. The statute provides one exception. It provides that, in case there is a stay of proceedings in the action after verdict, the judgment may be perfected “at anytime after thirty days from the expiration of such stay of proceedings.” While, ordinarily, a motion for a new trial on the minutes, pending at the close of the term, falls with the expiration of the term (R. S. sec. 2878; Prentiss v. Danaher, 20 Wis. 311), yet it may be kept alive, notwithstanding the expiration of the term, by stipulation of the parties (Hinton v. Coleman, 76 Wis. 221). This motion was preserved by such a stipulation. A motion for a new trial pending suspends all proceedings in the action until it is disposed of. 16 Am. & Eng. Ency. of Law, 637, and cases cited in note 4. So there was a stay of proceedings which prevented the judgment to be perfected within *132■sixty days after the rendition of the verdict. The case was then within the exception made by the statute itself. The right of the prevailing party to tax its costs was not lost, but it was suspended for thirty days after the expiration of the stay of proceedings. The purpose of this provision is not obvious, but the words of the statute are plain as the guileless language of Truthful James. While the right to perfect the judgment was so suspended, the respondent made its application to the clerk to tax its costs, which was refused. The application was premature, and was rightly refused. The appeal to the circuit court from the clerk’s ruling brought to that court for review only the case which was before the clerk. State v. Wertzel, 84 Wis. 344. The clerk’s position should have been affirmed, because, as the case then stood, the respondent had no right to tax its costs. But the court ordered the costs to be taxed, and they were afterwards .taxed, after the thirty days had expired, under the order, and not on a new notice of taxation. This was perhaps irregular, but perhaps the order was a sufficient substitute for that notice, so the right to tax defendant’s costs, at the time when they were taxed, is sustained.

How near the main transaction declarations must be in order to constitute a part of the res gestes, is considered in an extensive note to Ohio &M.R Oo. v. Stein (133 Ind. 243) in 19 L. R. A. 733. — Rep.

There had been a former trial of the case, which resulted in a verdict for the plaintiff. The verdict was set aside and a new trial granted on the condition that the defendant pay the costs of the plaintiff in that trial. As taxed, the costs included the defendant’s disbursements on the former trial. This seems to be unobjectionable. Byrne v. B. C. & N. R. Co. 26 N. Y. Supp. 65, 6 Misc. (N. Y.), 6, and cases cited.

By the Court.— The judgment of the circuit court is affirmed.