Keyser v. Chicago & G.T. Ry. Co.
| Decision Date | 23 June 1887 |
| Citation | 66 Mich. 390,33 N.W. 867 |
| Parties | KEYSER, by his Next Friend, v. CHICAGO & G.T. RY. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, St. Clair county.
p>Page James L. Coe, for plaintiff.
E.W Meddaugh and H. Geer, for defendant and appellant.
This action is brought to recover for personal injuries received by the plaintiff, when about two years and six months old from a passing train going east over its road in the township of Kimball, in the county of St. Clair. The case was before us at the April term, 1885, (see 56 Mich. 559, 23 N.W. 311,) and a new trial was granted, which has been had, and the plaintiff allowed to recover a judgment for $7,000. The defendant brings error, and 37 assignments are presented for our consideration. They are however, classified and presented by counsel for defendant in their briefs under nine propositions, which will be discussed in their order. The negligence of the defendant relied upon and alleged in the declaration is: "First, in running its passenger train over its road at a high rate of speed, without keeping a proper lookout; second, negligence of defendant in not fencing its line of road for more than six months prior to the injury; third, in omitting to give the statutory signals at the highway crossing." The essential facts will be found stated in the opinion given in the former case in 56 Mich. The testimony on several points is, however, somewhat different from that contained in the other record.
The first proposition presented by defendant's counsel relates to the statements made by Conger, the engineer, shortly after the injury occurred to the child. These are referred to in the first, fourth, eleventh, and twelfth assignments of error. Byron Buckeridge, a witness for plaintiff, testified that he was very near the child when the engine struck him, and threw him one side of the track into a pile of logs; that he was there as soon as any one; that the train did not go far until it stopped and backed up, and took the child on the train; that Clinton Conger, the engineer, and John McIntosh, were the only persons he saw there before the child was put on the train. The witness was then allowed to testify, against the objection of defendant that the testimony was incompetent, and that any statement the witness could or might have made at that time could not bind the company, that Conger stated why the train did not stop, according to his recollection, that he saw the child a half mile ahead, and thought it was a pig. When the train arrived at Port Huron, witness Inslee testified that he heard of the child being injured on the arrival of the train; that he was employed in the mechanical department of the road at Port Huron; that the engineer and fireman are connected with that department, and they had to make out a written report of any accident occurring on the trip made by them, and that such report, at the time this accident occurred, came to him first; that it was his duty to attach the report to the trip-sheet containing other reports, and send them to the heads of the department at Battle Creek. The witness was then asked by counsel for the plaintiff: "What did he [the engineer] state to you in reference to how he came to run upon the child on the arrival of the train that day?" And the witness was allowed to state, under a similar objection made to the testimony of Buckeridge, The remaining two questions upon this subject were propounded to witness Conger while he was giving his testimony for the defendant, upon his cross-examination: (1) "Did you not tell Byron Buckeridge and others, at the time you got off the train, and picked up the child, or they were picking him up, that you thought it was a pig; you saw it half a mile off?" and (2) "Have you not been around to see Byron Buckeridge, and talk with him several times about it before this week?" The questions were objected to as immaterial. To the first question the witness answered in the negative, but admitted that he might have told witness Inslee so on his arrival at Port Huron. To the second he answered that he had talked with Buckeridge twice on one branch of the subject.
The questions upon the cross-examination were proper, as tending to show that the witness had a different understanding when the accident occurred, and the version of the affair was different from what he gave on his direct examination. I think these statements of the engineer, made at the place where the accident occurred, and at the time he backed up the train, and took the boy on, as to the circumstances and the reason he gave for the management of the engine and train in approaching the boy, and how he came to run upon him, were so connected with the acts complained of as to become a part of the res gestae, and the testimony was properly received.
There is more question in regard to his statements made to Inslee at Port Huron. It is true, it was a part of the engineer's duty to give to Inslee a truthful report of the accident, and all the circumstances under which it occurred, and from the time the boy was hurt until the train arrived at Port Huron, the engineer and conductor had the child with them on the cars, and the company's liability for proper care and safety of the boy continued, to some extent, until the train arrived at that place, which was but three miles from where the accident occurred. I do not understand that declarations by persons whose duty it is to make them, in order to constitute a part of the res gestae, are required to be precisely concurrent in point of time with the principal transaction. If they spring from it, and tend to explain it, are voluntary and spontaneous, and are made at a time so near as to preclude the idea of design to misrepresent, they may be regarded as so nearly contemporaneous as to be admissible. Scaggs v. State, 8 Smedes & M. 722; Insurance Co. v. Mosley, 8 Wall. 397; Com. v. McPike, 3 Cush. 181; Harriman v. Stowe, 57 Mo. 93; Crookham v. State, 5 W.Va. 510; Boothe v. State, 4 Tex.App. 202; Rex v. Abraham, 2 Car. & K. 550; Hanover R. Co. v. Coyle, 55 Pa.St. 402; Brownell v. Pacific R. Co., 47 Mo. 239; People v. Vernon, 35 Cal. 49; Handy v. Johnson, 5 Md. 450; Carter v. Buchannon, 3 Ga. 513; Mitchum v. State, 11 Ga. 633; Courtney v. Baker, 2 Jones & S. 529; O'Connor v. Chicago, M. & St. P.R. Co., 27 Minn. 166, 6 N.W. 481; Armil v. Chicago, B. & Q.R. Co., 30 N.W. 42; State v. Horan, 20 N.W. 905; Lund v. Tyngsborough, 9 Cush. 36. I think this view will be found, upon an examination of the later authorities, to be sustained, and such I believe to be the tendency of our own decisions, so far as any have been made. Sisson v. Cleveland & T.R. Co., 14 Mich. 495; Mabley v. Kittleberger, 37 Mich. 362; Cleveland v. Newsom, 45 Mich. 63, 7 N.W. 222. See, also, section 108, Greenl.Ev. 144, and cases cited.
Our attention is called to what is said by Mr. Justice CHAMPLIN in Patterson v. Wabash, etc., R. Co., 54 Mich. 91, 19 N.W. 761, but it will appear by an examination of the opinion it was held that the statement of the brakeman was no part of the res gestae, "for the reason that such admission was not made while in the execution of his duty, or while the act to which it referred was being performed, and he was not so connected with the corporation defendant as to make his admissions the admissions of the defendant." Not so in this case. At the time and place this accident occurred, the engineer had complete control of his engine, and management of the same. He directed all of its movements; and the fireman and brakemen, and even the conductor, in case of danger to property or life from obstructions appearing upon the track, were subject to his orders in his efforts to avoid them. He was not only in the execution of his duties while passing over the road when the plaintiff was injured, but during the entire trip, and until he had made his report of the same to Inslee, and of the circumstances of the accident which had occurred. It required less than 16 minutes to run from the place of the accident to Port Huron, and less than 50 minutes to make the run and his report to Inslee. He was in the proper discharge of his duty all this time, having the injured boy on the train until he arrived at Port Huron, and what he did and said in the discharge of that duty, if no more than was required, I think should be regarded as proper evidence against the company, so far as it had any materiality to the case. It was the statements thus made to Inslee concerning the accident, and defendant's agency in causing the injury, upon which the plaintiff had most to rely. How far the statements of the agent are binding upon and competent to be given against the company, and to what extent they are part of the res gestae, depends upon the circumstances of each particular case, and I think the testimony of Inslee, giving the statements of the engineer made at Port Huron, was properly received.
The defendant's second proposition is that the company was not required to fence its right of way to protect this child from coming upon its track, and was guilty of no neglect in this respect. The second, fourteenth, twenty- first, and thirty-sixth assignments of error relate to this subject. Objection was made to plaintiff's testimony showing that the defendant's road was not...
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