5 Colo. App. 348 | Colo. Ct. App. | 1894
delivered the opinion of the court.
Bertha Klein, a child six years old, was killed by falling out of an elevator in the Central Block in the city of Pueblo, operated by The T. & PI. Pueblo Building Company, and this action was brought by Henry Klein and Bella Klein, the parents of the child, to recover damages on account of. her death. Two caus.es of action are embraced in the complaint. The first is that at 7:30 o’clock p. M., of the day of the accident, the deceased child and her brother, Louis Klein,-nine years
The answer consisted of a general denial and averment that the elevator was properly constructed, and that the accident was caused by the act of Bertha Klein, and not by any fault or negligence of the defendant. There was verdict and judgment in plaintiffs’ favor for $2,000. The defendant comes here by appeal.
The testimony of Louis Klein, the brother of Bertha, and who entered the elevator with her, tends strongly to prove that the accident was caused by the carelessness of the elevator boy, in the manner in which he started the elevator carriage.
The testimony of Saunders was clearly inadmissible. The only negligence charged was that of the elevator boy on the occasion of the accident. No other negligence was in issue. If he was negligent then, it would have been no defense that he had always before been careful. If he was not negligent then, it was entirely immaterial how habitually or recklessly negligent he might have been prior to that time. The effect of the testimony upon the jury must have been unfavorable to the defendant. If they believed that its servant was in the habit of starting and moving the elevator without regard to the safety of passengers, it would require less effort than otherwise to convince them of his negligence upon the occasion in question. The announced purpose of its admission, and the instruction to the jury as to how they should consider it, did not cure the mischief. They were instructed that they might consider it, but only for a certain purpose, which was to determine whether the elevator could be so suddenly started as to endanger passengers. Of course the fact that it was so started would be conclusive that it could be so started; but there was no evidence that it was started
But if it was the design of the court to withdraw the objectionable evidence from the jury, its good intention was completely nullified bjrsome of the general instructions given when the case was submitted, and which are assigned for error. Instruction number four told the jury that if they believed from the evidence that the manner in which, or the rate of speed at which, the defendant’s servant, who was in, charge of the elevator at the time of the accident, was accustomed to set it in motion in ascending, was such that a reasonable person ought to apprehend that a position therein would be a position of danger, it was the duty of its servants, etc. Instruction number five also submitted to the jury the question of its manner of operating the elevator. Both of these instructions, and more particularly the fourth, compelled the consideration, on the part of the juiy, of all that Saunders had stated concerning the careless and negligent manner in which this boy was accustomed to start the elevator when he, Saunders, was on board ; and entirely obliterated the distinction which, it is presumed, the court intended to draw in passing upon the admissibility of the evidence and instructing as to the purpose for which it was admitted. All of the court’s rulings upon this evidence, and the instructions involving it, were erroneous.
Over the defendant’s objection, the court permitted the witness, West, to testify that he was standing in front of the block when he heard the child’s scream, that he immediately went np the stairs to the third floor of the block, where he saw the elevator boy, and asked him what was the matter, to which he replied that he did not know, that he supposed that somebody was hurt. The witness also said that he did not think the time between the accident and the conversation was over a minute. The controversy between counsel is as to whether this convei'sation was admissible as part of the
It is no part of our present purpose to attempt to harmonize the authorities, or to criticise any of them. The question before us can be decided upon principles which they all recognize, and without coming into collision with any adjudication of either of the classes. The general doctrine applicable to the question may be stated thus : The declaration offered in evidence must be either contemporaneous with the principal fact, or its natural and spontaneous outgrowth. It must be the instinctive, unmeditated utterance of the party while the impression produced by the event has full possession of his mind. The connection between the statement and the fact must be such that the one is the evident interpreter of the other. Their relation to each other must be that of immediate cause and effect. When the two are thus connected, it does not matter that there is an appreciable lapse of time between them.»,, Notwithstanding such lapse, the one is a continuation of the other, and both are parts of one transaction. But, if there is a severance of the connection, if the transaction, so far as the person speaking is concerned, is at an end before the declaration is made, the -two are distinct, independent of each other, and it is imma
The decisions in Commonwealth v. M'Pike, 3 Cush. 181, and Insurance Company v. Mosley, 8 Wall. 397, make a very liberal application of the rule, and, in consequence, have been subjected to considerable adverse criticism. The declarations which were held admissible in those cases were declarations of the injured persons made some time after the injuries were received, but while suffering from their immediate effects; so that it was, without doubt, considered that the mental and physical condition of the parties, resulting directly from the injuries, furnished the necessary connection between the transactions and the statements; and in Augusta Factory v. Barnes, 72 Ga. 217, in which the facts were similar, the admission of the declarations of the injured party, made a half hour after the accident, and at a different place, was placed upon that precise ground. These decisions go to a length which in other cases is pronounced unwarranted; still, although the connection between the events and the utterances seems vague, the necessity of a connection is recognized, and it is not incumbent upon us to take issue with them for any purpose connected with this decision.
In this case no connection whatever appears between the fall of the child from the elevator and the words spoken by the elevator boy. If, when the child fell out, he had immediately lowered the elevator to the basement, against the floor of which she struck, any exclamation he might have made upon first coming in sight of her body, and realizing the fatal result of the accident, would perhaps be considered as part of the transaction, and therefore competent. But he continued his ascent, and -was found by West upon the third floor of the building, and there the conversation in question was had. The catastrophe had taken place, he had abandoned the child to her fate, he was giving no attention to the occurrence, and, as to him, the transaction was as completely
It was shown that the elevator had been in operation fifteen months, and the defendant offered, and the court refused it permission, to prove that during that time large numbers of persons had traveled in it by day and by night, and that this was the first accident which had occurred. Where the proper construction or safe condition of machinery is in issue, evidence that it has always satisfactorily answered the purpose for which it was intended is competent as raising a strong presumption that it was properly constructed and could be used with safety. It would also tend to repel any implication of negligence on the part of the owner in using improper machinery, because its continued operation for a long time with uniformly good results would be evidence of its freedom from danger, as convincing as any he could have. But we do not understand the complaint as charging that this elevator was unsafe for general travel. It is only in reference to the conveyance of small children that the charge of unsafety is made. The offer of the defendant, as it was framed, was, we think, to broad; and the evidence proposed
Reversed.