Leahey v. Cass Avenue & Fair Grounds Railway Co.

• Citation: 10 S.W. 58,97 Mo. 165
• Parties: Leahey v. Cass Avenue & Fair Grounds Railway Company, Appellant
• Decision Date: 20 December 1888
• Court: United States State Supreme Court of Missouri

10 S.W. 58

97 Mo. 165

Leahey v. Cass Avenue & Fair Grounds Railway Company, Appellant

Supreme Court of Missouri

December 20, 1888

Appeal from St. Louis City Circuit Court. -- Hon. G. W. Lubke Judge.

Reversed and remanded.

Leonard Wilcox for appellant.

(1) It was error to permit Dr. Miller, James Keating, Maggie Keating, and each of them, to testify to statements and declarations made by James O'Neil after he had been carried into Keating's house. State v. Rider, 90 Mo. 62; Waldele v. Railroad, 95 N.Y. 278; Martin v. Railroad, 103 N.Y. 629; Railroad v O'Brien, 119 U.S. 106; Merkel v Bennington, 58 Mich. 162; Railroad v. Mara, 26 Ohio St. 185, 190; Armil v. Railroad, 70 Iowa 130; Rogers v. McCune, 19 Mo. 558; Kelly v. Railroad, 88 Mo. 534; Adams v. Railroad, 74 Mo. 556; 1 Wharton on Ev. (3 Ed.) secs. 259, 265; Williamson v. Railroad, 144 Mass. 148. (2) It was error to permit Callahan and Dyas to testify what deceased said after the accident was over and a crowd had gathered and as he was being carried away from the place of the accident, and in overruling defendant's motion to strike out one of Callahan's answers on this point. State v. Rider, 90 Mo. 62; Martin v. Railroad, 103 N.Y. 629; Railroad v. Mara, 26 Ohio St. 185, 190; Kelly v. Railroad, 88 Mo. 534. (3) It was error to overrule defendant's motion to strike out Callahan's statement that he heard a woman shout "murder," and defendant's objection to the question asked same witness "whether he heard anything else said or any cry made besides the declaration of the boy that he had been kicked off the car," his answer to which was a repetition of the statement. State v. Sneed, 88 Mo. 138, 142; Railroad v. O'Brien, 119 U.S. 105. (4) It was error to permit officer Morgan to testify what the driver of the car said to him three days after the accident, and to permit the driver to be asked if he made said statements. Sherman v. Railroad, 106 N.Y. 542; Leavy v. Dearborn, 19 N.H. 355, 356; People v. Buddensieck, 4 N.Y. 230, 264; Kelly v. Railroad, 88 Mo. 537, 540, 548; McDermott v. Railroad, 87 Mo. 299.

J. F. Merryman for respondent.

(1) The testimony of officer Callihan and conductor Dyas as to the statement of deceased made within a minute or a minute and a half after the accident; of James Keating and Maggie Keating of declarations made within five minutes after the accident; of Dr. Miller of statements and declarations made within fifteen minutes -- all to the effect that the driver kicked deceased off the car, are admissible as part of the res gestae. Brownell v. Railroad, 47 Mo. 239; State v. Sloan, 47 Mo. 611; Harriman v. Stowe, 57 Mo. 96; Entwhistle v. Feighner, 60 Mo. 215; Stockman v. Railroad, 15 Mo.App. 515; State v. Banks, 10 Mo.App. 115; 1 Greenl. on Ev. sec. 108; Ins. Co. v. Mosley, 8 Wall. 397; Com. v. McPike, 3 Cush. 181; Newton v. Ins. Co., 2 Dillon, 154; Mitchum v. State, 11 Ga. 627; Starkie on Ev. 88-89; 1 Taylor on Ev. secs. 521-525. (2) The statement of officer Callihan that he heard a woman shout "murder" at the time the accident occurred was admissible. (3) The testimony of officer Morgan that Jessop, the driver, stated to him three days after the accident, when they were in the hoodlum wagon on their road to the Four Courts, that he did not kick the deceased off the car, but "closed the gate on him," was competent and relevant, not as part of the res gestae, but by way of impeachment.

Black J. Ray, C. J., absent.

OPINION

Black, J.

This is an action to recover statutory damages for the death of James O'Neil, a boy eleven years of age, and the son of the plaintiff. The defendant corporation owns, and with horse-power operates, a street railroad in the city of St. Louis. That the boy was run over by one of defendant's cars and received wounds and bruises from which he died on the next day, is an undisputed fact. At the time of the accident the car was a few yards east of the Twenty-fourth street crossing going east on Cass avenue.

Plaintiff produced evidence tending to show that the boy was standing on the front platform of the car with the driver just before and while crossing Twenty-fourth street; that they appeared to be talking together and the driver appeared to be angry; that the boy opened the gate and stepped out backwards on the step, facing and looking at the driver, and appeared to be frightened; and that he stepped and fell off and under the car. One witness says the driver made a pass at the boy with his hand.

The defendant's evidence tends to show that this and another boy by the name of Brown were together on the street; that Brown jumped on the step to the front platform, and, in answer to a question of the driver, said he was going down town, whereupon the driver told him to get in the car; that Brown opened the gate, stepped in on the platform, and then out and off; that at this moment O'Neil got on the step and immediately slipped and fell under the car; that the driver did not speak to him, and only observed his presence when he fell.

Two policemen arrested the driver and conductor and took them to the station. Persons present then carried the boy to the house of Mr. Keating, a distance of fifty or seventy-five feet, where a cot was provided for him. After he had been placed upon it, he stated to Mr. Keating, in answer to questions as to where he lived and how he got hurt, that he got on the step of the car and the driver kicked him off. These statements were made five or eight minutes after the accident. Dr. Miller arrived within fifteen or twenty minutes, and he interrogated the boy as to how he got hurt, and in answer the boy said he was on the front platform of the car, that he attempted to get off and the driver kicked him off and he fell under the car. These statements were detailed in evidence by Mr. Keating, his daughter and Dr. Miller, and the question is whether they are a part of the res gestae.

In Harriman v. Stowe, 57 Mo. 93, the plaintiff was injured about noon. Her physician called between one and four o'clock of the same day, when she stated to him how she got hurt, namely, by falling through a trap-door. This statement the physician related on the witness-stand, and this court held the evidence competent, because part of the res gestae, saying that the declaration and accident formed connecting circumstances. That case, it is urged by the plaintiff, goes far enough to admit the declarations made in the present case.

The case of Brownell v. Railroad Co., 47 Mo. 239, was a suit instituted to recover damages for the death of the plaintiff's husband. There the declaration of Brownell, in reference to the switch, it is said, "grew directly out of and was made immediately after the happening of the fact," and it was held that the declaration was competent evidence for the plaintiff.

That case cites with approval Ins. Co. v. Mosley, 75 U.S. 397, 8 Wall. 397, 19 L.Ed. 437, which was an action on a policy of insurance. To show that the death of the insured was caused by an accident, the wife testified that her husband left his bed between twelve and one o'clock, that when he came back, he said he had fallen down the back stairs and almost killed himself. The evidence of the son was to the same effect; he also testified further, that on the day after the fall, his father said he felt badly, etc. This evidence was held to be competent for two purposes, first, to show bodily injuries and pain, and second, to prove that deceased fell down the stairs. In respect of the first it is said, such evidence must relate to the present and not to the past. Anything in the nature of narration must be excluded. As to the second, it is said in substance, that generally the declarations must be contemporaneous with the event, yet the rule is not of universal application. Further on it is said: "Here the principal fact is the bodily injury. The res gestae are the statements of the cause made by the assured almost contemporaneously with its occurrence, and those relating to the consequences made while the latter subsisted and were in progress."

That court, as well as this, in the cases last cited, quote approvingly from Hanover Railroad Co. v. Coyle, 55 Pa. 396, where a peddler's wagon was struck and injured by a locomotive. The court said: "We cannot say that the declaration of the engineer was not a part of the res gestae. It was made at the time -- in view of the goods strewn along the road by the breaking up of the boxes -- and seems to have grown directly out of and immediately after the happening of the fact."

Adams v. Railroad, 74 Mo. 553, was an action by the plaintiff to recover damages for the death of her husband. Plaintiff proved by one witness that after the deceased was struck and after the train had stopped, two train-men, whom the witness took to be the fireman and engineer, came up, and one of them said to the other, "If you had stopped the train when I told you, you would not have killed him." The other replied, "It cannot be helped now; it is too late." This court, after reviewing various authorities, stated its conclusion as follows: "Were the declarations connected with the calamity as a cause or concomitant? Were they contemporary with the principal transaction, and illustrative of its character, or merely a subsequent narrative of how it occurred, or an explanation of how it might have been avoided? If the latter, as we think, they were wholly inadmissible, and the court erred in permitting the...