Little Rock, M. R. & T. Ry. Co. v. Leverett

• Decision Date: 05 February 1887
• Citation: 3 S.W. 50
• Parties: LITTLE ROCK, M. R. & T. RY. CO. <I>v.</I> LEVERETT, Adm'x.
• Court: Arkansas Supreme Court

3 S.W. 50

LITTLE ROCK, M. R. & T. RY. CO.v.

LEVERETT, Adm'x.

Supreme Court of Arkansas.

February 5, 1887.

Appeal from circuit court, Desha county.

Action for damages for causing death, brought by S. L. Leverett, appellee, against the Little Rock, Mississippi River & Texas Railway Company, appellant.

J. M. Moore, for appellant. X. J. Pindall and B. F. Grace, for appellee.

BATTLE, J.

This was an action brought by Sallie L. Leverett, as administratrix of the estate of James W. Leverett, deceased, against the Little Rock, Mississippi River & Texas Railway Company, to recover damages alleged to have resulted from the negligence of the defendant in wrongfully causing the death of the deceased. The action was brought under section 5226 of Mansfield's Digest, to recover damages for the benefit of the next of kin of the deceased. The negligence averred is that defendant's road-bed, tracks, and station at the town of Arkansas City, were constructed on a high embankment, with a narrow and insufficient crown, and steep, slippery, and insufficient slopes; that the cross-ties placed on the embankment extended over the sides of the embankment; that there was no walkway for switchmen to walk or stand upon when in the necessary discharge of their duties coupling and uncoupling cars; and that the road-bed at this place was not sufficiently ballasted or surfaced up. It is averred that the deceased was employed by defendant as a switchman in the yard at this station, and was engaged on the night of the twelfth of January, 1883, in the line of his duty, in uncoupling cars, and that, while so engaged, one of his feet slipped between the ties, and was caught, and, before he could extricate it, he was run over by defendant's cars, and killed; that the deceased had then been recently employed by defendant and was ignorant of the dangerous and defective construction of the embankment, road-bed, and tracks on which he was engaged at the time he was killed; and that his death was the result of the negligence of defendant in constructing its road-bed and tracks in the manner stated.

On a trial in the circuit court, plaintiff recovered a judgment for $3,500, and defendant appealed to this court.

It is first insisted that the circuit court erred in admitting evidence of the declarations of the deceased as to the manner in which he was injured. Thomas Leverett, a brother of the deceased, testified that he heard a noise on the railroad, and immediately went over, and found the deceased under the car, lying partly on the rails, between the track, trying to get out, but could not do so, being unable to move his legs; and he asked him how he was caught; and that deceased told him he had stepped in between the cars to uncouple them; that the pin was tight, and he stepped out, and signalled the engineer to back up to loosen the pin; and that he then stepped in between the cars to uncouple them, and, as he did so, he stepped between the ties, and his feet slipped, and, before he could recover, his foot was caught against the tie by the break-beam, and he was thrown down. This statement was made by the deceased while he was under the car, and in the condition found by his brother. Appellant insists that this statement was incompetent evidence, because it was not a part of the res gestæ.

Wharton says: "The `res gestæ may be defined as those circumstances which are the undesigned incidents of a particular litigated act, and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. They may consist of speeches of any one concerned, whether participant or by-stander. They may comprise things left undone, as well as things done. Their sole distinguishing feature is that they should be the necessary incidents of the litigated act; necessary, in this sense, that they are part of the immediate preparations for or emanations of such act, and are not produced by the calculated policy of the actors. In other words, they must stand in immediate causal relation to the act,—a relation not broken by the interposition of voluntary individual wariness, seeking to manufacture evidence for itself. Incidents that are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become in this way evidence of the character of the act. * * * Therefore declarations which are the immediate accompaniments of an act are admissable as part of the res gestæ, remembering that immediateness is tested by closeness, not of time, but by causal relation, as just explained." Whart. Ev. §§ 258-267, and authorities cited.

In Clinton v. Estes, 20 Ark. 225, it is said: "It may be difficult to determine at all times when declarations shall be received as a part of the res gestæ. But when they explain and illustrate it, they are clearly admissible. Mere narratives of past events, having no necessary connection with the act done, would not tend to explain it. But the declaration may properly refer to a past event as the true reason of the present conduct."

In Carr v. State, 43 Ark. 102, in speaking of what declarations constitute a part of the res gestæ, the court said: "Nor need any such declarations be strictly coincident as to time, if they are generated by an excited feeling which extends, without break or let, down from the moment of the event they illustrate. But they must stand in immediate causal relation to the act, and become part either of the action immediately preceding it, or of the action which it immediately precedes."

Again, in Flynn v. State, 43 Ark. 292, it is said: "It often becomes difficult to determine when declarations shall be received as part of the res gestæ. In cases like this, words uttered during the continuance of the main action, or so soon thereafter as to preclude the hypothesis of concoction or premeditation whether by the active or passive party, become a part of the transaction itself, and, if they are relevant, may be proved as any other fact, without calling the party who uttered them."

In Com. v. Hackett, 2 Allen, 136, upon a trial for murder, a witness testified that at the moment the fatal stabs were given he heard the victim cry out, "I am stabbed," and he at once went to him, and reached him within 20 seconds after that, and then heard him say: "I am stabbed; I am gone. Dave Hackett has stabbed me." This evidence was held competent as a part of the res gestæ. Chief Justice BIGELOW, for the court, said: "If it was a narrative statement, wholly unconnected with any transaction or principal fact, it would be clearly inadmissible. But such was not its character. It was uttered immediately after the alleged homicidal act, in the hearing of a person who was present when the mortal stroke was given, who heard the first words uttered by the deceased, and who went to him, after so brief an interval of time that the declaration or exclamation of the deceased may fairly be deemed a part of the same sentence as that which followed instantly after the stab with the knife was inflicted. It was not, therefore, an abstract or narrative statement of a past occurrence, depending for its force and effect solely on the credit of the deceased, unsupported by any principal fact, and receiving no credit or significance from the accompanying circumstances; but it was an exclamation or statement contemporary with the main transaction, forming a natural and material part of it, and competent as being original evidence in the nature of res gestæ." Again, the learned judge said: "The true test of the competency of the evidence is not, as was argued by the counsel for the defendants, that the declaration was made after the act was done, and in the absence of the defendant. These are important circumstances, and, * * * if they stood alone, quite decisive. But they are outweighed by the other facts in proof, from which it appears that they were uttered after the lapse of so brief an interval, and in such connection with the principal transaction, as to form a legitimate part of it, and to receive credit and support as one of the circumstances which accompanies and illustrates the main fact which was the subject of inquiry before the jury."

In the case of Hanover R. R. Co. v. Coyle, 55 Pa. St. 402, where a peddler's wagon was struck, and the peddler injured by the negligence of the engineer, the latter's declaration, made after the infliction of the injury, was admitted as a part of the transaction itself; the court saying: "We cannot say that the declaration was no part of the res gestæ. 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. The negligence complained of being that of the engineer himself, we cannot say that his declarations, made upon the spot, at the time, and in view of the effects of his conduct, are not evidence against the company as a part of the very transaction itself."

In the case of Elkins v. McKean, 79 Pa. St. 493, the plaintiff sued the defendant for damages caused by oil, manufactured and sold by him to plaintiff's husband, exploding while the husband was using it in a lamp, and catching fire, and burning the husband to death. The court held what the husband said as to the cause of the accident, when found enveloped in the flames, or within a few minutes afterwards, was clearly competent evidence as a part of the res gestæ.

In Casey v. New York Cent. & H. R. R. Co., 78 N. Y. 518, the plaintiff sued for damages resulting from the death of a child who had been run over and killed by the defendant's cars. On the trial a police officer, who went to the place of the accident immediately after the child was killed, and found the child under the wheels of the car, was permitted, as a witness for the plaintiff, to state what the engineer in charge of the engine said...