Corbett v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 02 June 1887
• Citation: 26 Mo.App. 621
• Parties: JOHN CORBETT, Respondent, v. ST. LOUIS. IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

26 Mo.App. 621

JOHN CORBETT, Respondent, v. ST. LOUIS. IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

June 2, 1887

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Reversed and remanded.

BENNETT PIKE and HENRY G. HERBEL, for the appellant: The court erred in admitting illegal and improper evidence offered by the plaintiff, and in excluding legal and proper evidence offered by the defendant. Railroad v. Huntley, 38 Mich. 537. The court erred in refusing the instruction, in the nature of a demurrer to the evidence, asked by the defendant at the close of the whole case. Hoke v Railroad, 11 Mo. 579; Rohback v. Railroad, 43 Mo. 187; Whalen v. Railroad, 8 Ohio St. 249; Gormley v. Railroad, 72 Ind. 31; Collins v Railroad, 31 Minn. 31; Henry v. Railroad, 81 N.Y. 373; Campbell v. Railroad, 24 Am. & Eng Ry. Cases, 427. The court erred in refusing proper and legal instructions asked by the defendant, and in giving illegal and improper instructions asked by the plaintiff. McGrath v. Railroad, 18 Am. & Eng. Ry. Cases, 6; Railroad v. Wachter, 60 Md. 395; Railroad v. McKenzie, 24 Am. & Eng. Ry. Cases, 405; Renfro v. Railroad, 86 Mo. 302; Hallihan v. Railroad, 71 Mo. 113; Clark v. Railroad, 92 Ill. 43; Morgan v. Railroad, 5 Best & S. 570.

A. R. TAYLOR, for the respondent: The declaration of the witness was immediately after the injury, as soon as Varley could get to him; it was immaterial in itself, but the court was clearly right in admitting it as a part of the res gestae. Brownell v. Railroad, 47 Mo. 245; Harriman v. Stowe, 57 Mo. 96; Entwhistle v. Feighner, 60 Mo. 215. The testimony of Dr. Vasterling, as to information gained in his capacity of physician, in order to prescribe for him, was clearly incompetent. Gartside v. Ins. Co., 76 Mo. 446; Groll v. Tower, 85 Mo. 255. The persons were not fellow-servants. Vautrain v. Railroad, 8 Mo.App. 543; S. C., 78 Mo. 44; Lewis v. Railroad, 59 Mo. 495; Porter v. Railroad, 71 Mo. 78; Hall v. Railroad, 74 Mo. 298.

OPINION

ROMBAUER J.

The plaintiff, who was a railroad section hand and track repairer, was engaged in unloading cinders from one of the defendant's platform cars, which stood upon the railroad track of the defendant. He was standing on the car, facing south, in the performance of this duty, when one of the defendant's trains, coming from the north, and running on the same track on which the train of platform cars was standing, collided with the latter, and, by dint of the collision, threw the plaintiff with violence to the forward end of the car, whereby his head received a severe cut or gash. He brought this action to recover damages for the injury thus sustained, and recovered a verdict for seven hundred and fifty dollars.

The answer contained a general denial, and the plea of contributory negligence, which was traversed by the reply.

The errors assigned upon this appeal are: (1) That the court erred in overruling the defendant's demurrer to the evidence. (2) That it admitted illegal and incompetent testimony for the plaintiff, and excluded proper evidence offered by the defendant. (3) That it gave erroneous instructions to the jury, and refused proper instructions asked by the defendant.

I. The first assignment rests upon the proposition that there was no evidence tending to show that the employes of the defendant, in charge of the south-bound train, could have stopped their train after they became aware of the platform cars on the track. There was some conflict of evidence upon this subject. One of the plaintiff's witnesses testified that he could see the track north of the cinder train for a quarter of a mile, and it appeared that the south-bound train, running at the speed at which it was running, could have been stopped much short of that distance. If the track was in sight for a quarter of a mile, the men on the approaching train could have seen the cinder cars, if they had kept a proper look-out, in time to stop their train before it collided. On that state of the evidence, the plaintiff was entitled to go to the jury, provided the accident was not the result of the negligence of a fellow-servant.

II. The defendant claims that the court admitted in evidence, against its objection, the following declarations, made by the plaintiff two or three minutes after the accident, to witness Varley, and testified to by the latter: " He told me he was hurt in his hip and in his side, ‘ and I am afraid,’ says he, ‘ that my skull is broke."

We are referred by counsel for the plaintiff to three decisions in this state, under which it is claimed that this evidence was admissible: Brownell v. Railroad, (47 Mo. 245); Harriman v. Stowe (57 Mo. 96); and Entwhistle v. Feighner (60 Mo. 215). The first was a dying declaration, made as to the cause of the accident which resulted in the death of the plaintiff's husband, and the matter discussed was whether declarations of the character are ever admissible in a civil case, and it was held that, while not admissible as a dying declaration, it was clearly admissible as a part of the res gestae. In Harriman v. Stowe (57 Mo. 96), the declaration, though made a short time after the accident, was one relating to the cause of the accident, and the court held it admissible, Wagner, J., saying: " The accident and the declaration formed connecting circumstances, and in the ordinary affairs of life, no one would doubt the truth of these declarations, or hesitate to credit them as evidence." In Entwhistle v. Feighner (60 Mo. 215), the court say: " The plaintiff gave evidence of the declarations of the deceased husband, immediately after he received the injury, and they were objected to, but they were clearly admissible, within the principle established in Brownell v. Railroad, and Harriman v. Stowe, and this is conceded by counsel in his brief." It did not appear in that case what the declarations were, or to what they related; but it is fairly presumable that they referred to facts in connection with the accident.

Some confusion has arisen in the decisions by a failure to distinguish the various questions in which the admissibility of this class of testimony has arisen; courts speaking indiscriminately of declarations against interest, declarations made by agents in course of their agency, declarations on which other persons acted, dying declarations, which are admitted by reason of necessity, and other declarations, cotemporaneous with the transaction, as parts of the res gestae. Many of these declarations are admissible on other principles. Declarations, to be admissible, solely and simply because they were made at the time when an act transpired, can be admissible only on the principle that they were an oral act, and that, as Wagner, J., says, " they were made under circumstances when, in the ordinary affairs of life, no one would have doubted the truth of these declarations." As Hosmer, Ch. J., says, in Enos v. Tuttle (3 Conn. 250): " They must have been made at the time of the act done which they are supposed to characterize, and have been well calculated to uphold the nature and quality of the facts they were intended to explain, and so to harmonize with them as obviously to constitute one transaction." It must, further, be evident that the declaration, to be admissible, must be concerning some fact pertinent to the issues, and touching which the declarant might be examined, if a witness, himself; and unless a declaration answers these requirements, it is inadmissible.

Applying these rules to the testimony elicited from the witness, and it is manifest that the declarant's statement, " that he was afraid his skull was broke," was clearly inadmissible, on any theory, and should have been excluded by the court, upon request. No such request, however, was made. The question put to the witness, as to what the plaintiff said to him, immediately after the accident, was a proper question, and the objection to it was properly overruled. For aught that appears, that question was not designed to elicit any irrelevant or incompetent evidence. If it did elicit some evidence which was both irrelevant and incompetent, the defendant should have moved to exclude the irrelevant answer, and, having failed to do so, is in no condition to complain.

Upon the examination, on behalf of the defendant, of Dr. Vasterling, who had attended the plaintiff as his physician, while undergoing a treatment for the injuries received, the following questions were put to him: " State to the jury what his hurts were? Why did he leave on the seventh? Did he require any attention longer than that?" The plaintiff objected to these questions, and the court sustained the objections, stating to the defendant's counsel, at the same time, " you may use the doctor as a witness to prove any fact within his knowledge, other than that which came to him peculiarly as a physician."

There was no error in this ruling. The present rule, in this state, on that subject, is clearly stated in Groll v. Tower (85 Mo. 255): " Where the evidence of the attending physician is offered by the patient, or his representatives, it is competent and admissible. Where it is offered by the opposite party, the physician can not testify against the objection of the patient or his representatives." In the prior case of Gartside v. Insurance Company (76 Mo. 446), the phrase in the statute, " information which may have been acquired from any patient, while attending him in a professional character," was construed to include such information as the physician acquired from his own observation and examination, beyond information acquired from what the patient said.

III. The only question of any difficulty arises upon the action of the court in giving...