140 Mich. 310 | Mich. | 1905
Plaintiff, as administrator of his father’s estate, brought suit against defendant to recover damages for injuries received by his father, from which he subsequently died, claimed to have been caused by the negligence of defendant. The facts are that on the 2d day of
“As soon as he got to bed and commenced to know where he was, he said he didn’t know where he was before.
“Q. You say he didn’t know where he was until after you had washed him and dressed him and got him in bed?
“A. He didn’t seem to pay any attention, and he didn’t say anything. * * *
“Q. Until you got him in bed ?
“A. Until I got him in the house.
“Q. Until you got him in bed?
“A. I wouldn’t say for sure whether he recognized me when we were getting him into the house or not.”
‘ ‘ Q. What, if anything, did your father tell you as to this accident on this day, when he first came to consciousness so that he could talk ? ”
This was objected to as immaterial and incompetent to show what he said after being removed from the scene of the accident.
“ The Court: The question is not only objectionable for the reason stated, but it does not appear, and it might be important to know, whether it was something that was voluntarily expressed, like an ejaculation, or whether an interrogation, or a long-continued conversation, in which this witness tried to draw out something and go into the transaction. It might be well for the court to know something about that.”
Thereupon the court asked the witness the following questions:
“Q. In what he did say to you, was it in answer to your questions, or not ?
“A. Yes, sir.
“Q. Before broaching that subject, how long did you talk with him ?
“A. Oh, not a great while; just asked him how he felt.
‘ Q. And what else ?
“A. And if he was hurt bad.
1 ‘ Q. What else, if anything ?
‘ ‘A. I don’t know as anything more was asked him.
“ Q. Then you asked him how it happened ?
“A. Yes.
“Q. And then came the answer you were asked to give P In telling how it happened, did he go on and relate how it happened, himself ?
“A. Yes; he related just how it started.
“Mr. Button: That there may be no misunderstanding, I would like to ask one more question.
“Q. I understand this conversation with your father took place as soon as he recovered consciousness enough to carry on a conversation. Is that true ?
*313 “A. Yes.”
The court then refused to allow the plaintiff to testify to what was told him by deceased as to how the accident happened.
The claim of the plaintiff was that the team of decedent shied at a hole in the planking of the bridge, causing the wagon to run upon the truss, from which the injury resulted. Negligence is charged against defendant in not keeping the bridge in repair. Plaintiff also claimed that the statement of deceased, offered in evidence, as to how the accident occurred, was admissible as part of the res gestee. There were no witnesses produced who saw the horses swerve to one side while on the bridge.
The trial court held that the statement offered was not admissible; that it was the narrative of a past event, called out by the questions of plaintiff. The only question before the court in this case is whether the judge erred in so holding. No evidence was offered by defendant, and a verdict was directed in its favor on motion. Afterwards, upon motion for a new trial by plaintiff, the main question in the case was argued at length. The circuit judge, in a well-considered opinion, which is printed in full in defendant’s brief, denied the motion. He arrived at the conclusion that in this case, where the statement offered in evidence had been made a long distance away from the scene of the accident, and more than an hour after it occurred ; when it appeared that deceased during part of the time had been sufficiently conscious to recognize an acquaintance and to ask about his horses, such statement, having been drawn out by the questions of the witness, was in the nature of a narrative of a past event, and therefore hearsay; that it was not a voluntary and spontaneous statement, and could not be considered as part of the res gestse.
The authorities, in discussing the question of the admissibility of statements of injured persons in these cases, have laid down certain propositions upon which there is
One of the incidents of the case under consideration, which in some measure makes it less easy of solution, is the claimed unconsciousness of decedent during the period of time which elapsed between the injury and the statement relied upon. The mere fact that the statement was made at a distance from the place of the accident is of itself not material, but the length of time intervening before the statement was made, and the condition of decedent during that period, and the circumstances under which the statement was made, all taken together, are of vital importance. Some authorities hold that voluntary, spontaneous statements made immediately after a period of unconsciousness, even at a distance from the place of acci
The circuit judge did not err in excluding the statement offered. As there was no evidence in the case tending to show negligence on the part of defendant, the direction of a verdict for defendant was proper.
The judgment is affirmed.