Walker v. Brantner

59 Kan. 117 | Kan. | 1898

Allen, J.

„ „ „„ v\ewawe\is to" Uets' It is earnestly insisted on behalf of the plaintiffs in error that no recovery can be sustained under the facts shown by the record in this case. No claim is made that there was not a sufficient showing of negligence on the part of the engineer and other employees in charge of the Frisco train. That they might have seen the Memphis train approaching the crossing as the Frisco train came out from behind the depot is clear and beyond dispute. The Memphis train, consisting of an engine and fourteen cars, was more than five hundred feet long, and the caboose must at the time of the collision have been one hundred feet south of the point where the engine stojaped and whistled. It would seem that if Dwyer, the Frisco engineer, looked, as he claims he did, he must certainly have seen the Memphis train moving toward the crossing. But counsel for the defendants do contend with much earnestness that the testimony shows that Brantner was guilty • of such contributory negligence as bars a recovery. It is insisted that he proceeded towards the crossing without availing himself of the opportunity he had to look between the round house and the Frisco depot before his view was cut off; that he did not look at the earliest opportunity after passing the round house, and that he did not keep his train under such control as to be able to stop and avoid the collision. It is also urged that in approaching a crossing where the view in one direction was obscured to such an extent as in this case, it was the duty of those in charge of the Memphis train to send a flagman forward to ascertain whether the crossing could be safely made before proceeding. These are all considerations which it was eminently proper for counsel to urge to the jury, but under all the facts disclosed by the testimony, it cannot be declared as matter of law that Brantner was guilty of contributory negligence. An engineer, while approaching a railroad crossing with his train, must take precautions commensurate with the dangers of the situation. Whether Brantner, after having stopped and given the crossing signal and having looked in the direction from which the .Frisco train came, had a right to proceed to the crossing without taking other precautions than he did, was a question to be determined from all the evidence.. There was some conflict in the statements of different witnesses with reference to the giving of signals, the relative time of starting trains, the speed at which they moved, and the position of the Memphis engine when the Frisco engine first came in sight at the east end of the depot. It is not our province to determine whether as a matter of fact, the view of the Frisco track was entirely cut off from Brantner, before the Frisco engine came in sight. Nor do we deem it incumbent on us to declare as matter of law that Brantner was bound to send a flagman forward past the round house and get an unobstructed view to the west along the Frisco track before proceeding to make the crossing. The Frisco train had to cross the Santa Fe road before reaching the Memphis, and at the crossing of the Santa Fe the engineer had a view of the Memphis track for a considerable distance and could have seen Brantner’s train approaching the crossing. Whether under these circumstances Brantner had a right to assume that he would look and would see the train is for the jury to determine. There was no error in overruling the demurrer to the plaintiff's testimony.

deceased admissible, when. The defendant sought to prove statements made by Brantner after the collision with reference to his conduct immediately prior to it. This testimony was excluded. It is apparent that Brantner’s declarations would have much weight with the jury, and also that the ottered testimony bore directly on the vital issue' in the case. It may be that some of the statements which' the defendant claimed it could prove were in the nature of expressions of opinion, or deductions from other facts, yet being the statements of Brantner with reference to the occurrence they were admissible as declarations against interest, At the time the statements were made Brantner alone had a cause of action against the Railway Company for the injury. No cause of action had then accrued in favor of the plaintiff, for Brantner was living. The declarations offered fall within the rule allowing the admission of statements of third parties as declarations against interest. They were made by a person since deceased concerning a transaction of which he had knowledge, and were against the interest of the person making them. The cases of Louisville, etc., Rld. Cos. v. Berry, 28 N. E. 714, and Johnston v. Oregon, etc., Rld. Co., 23 Ore. 94; 31 Pac. 283, give some support to the ruling of the trial court, but the matter does not seem to have received full consideration in either case, and we are not satisfied with the conclusions reached. The citation of City of Bradford v. Downs, 15 Atl. 884, is a mistake. We have' not been able to find the case. In section 147, 1 Greenleaf on Evidence (15th ed.), the author says :

“ This class embraces not only entries in books, but all other declarations or statements of facts, whether verbal or in writing, and whether they were made at the time of the fact declared, or at a subsequent day. But to render them admissible, it must appear that the declarant is deceased, that he possessed competent knowledge of the facts, or that it was his duty to know them ; and that the declarations were at variance with his interest. When these circumstances concur, the evidence is received, leaving its weight and value to be determined by other considerations.”

See also Lax v. Forty-second etc. C. R. R. Co., 14 Jones & Spencer, 448; Stein v. R. R. Co., 10 Phila. 440. It is insisted that the spirit, if not the letter, of section 333 of the Code, General Statutes of 1897, prohibits O’Hara, the superintendent of the railway company, from testifying to a conversation had personally by him with Brantner ; that O’Hara represented the Railway Company, and stands in the relation of a party in this case adverse to the heir at law of a deceased person. Cases are cited where the representative of a corporation who had personally entered into a contract for the corporation with one who afterward died has been held incompetent to testify concerning the transaction in an action between the corporation he represented and the personal representative of the other party to the contract.

, _ . RegsX»iu“uo )my' If we concede the soundness of the rule declared in these cases, concerning which, however, we express no opinion, they are distinguishable from this. It does not appear that O’Hara was authorized to represent the Railway Company in any transaction with Brantner. The conversation, so far as the record discloses, was not connected in any manner with any negotiations, or business transaction, conducted by O’Hara for the company. He, therefore, stands in the same relation to the conversation as any other witness to it. The error in rejecting this testimony is emphasized by the refusal of the court to submit to the jury the sixth and .seventh special questions, which call for answers as to whether Brantner and the fireman looked out for a train from the west after the signal for the crossing was given. These questions were quite as pertinent as any that were submitted, and bore directly on the turning point of the case, namely, the question as to the contributory negligence of Brantner. The sixteenth and seventeenth questions also appear to be proper ones. We are at a loss to know on what theory the court struck them out. Other errors are alleged, but it seems unnecessary to discuss them. For the error in excluding the testimony as to the statements of Brantner, and in refusing to submit the special questions mentioned, the judgment must be reversed, and the case remanded for a new trial.