Chesapeake & O. Ry. Co. v. Mears

• Decision Date: 04 April 1933
• Docket Number: No. 3412.,3412.
• Citation: 64 F.2d 291
• Parties: CHESAPEAKE & O. RY. CO. v. MEARS.
• Court: U.S. Court of Appeals — Fourth Circuit

64 F.2d 291 (1933)

CHESAPEAKE & O. RY. CO. v. MEARS.

No. 3412.

Circuit Court of Appeals, Fourth Circuit.

April 4, 1933.

William Leigh Williams, of Norfolk, Va., for appellant.

Alfred Anderson, of Norfolk, Va., for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal from a judgment in favor of the administratrix of a deceased railway employee, in an action instituted under the Federal Employers' Liability Act (45 USCA §§ 51-59). The action was based on alleged negligence of the defendant in placing a car on a siding in a position dangerously near a lead or "ladder" track, the contention of plaintiff being that her intestate was knocked from a car passing on the "ladder" track and killed as a result of this negligent placing of the car. Three questions are raised by the assignments of error: (1) Whether the trial judge erred in admitting as a part of the res gestc a declaration of decedent made shortly after the injury which resulted in his death; (2) whether verdict should have been directed for defendant either because the evidence failed to establish negligence or because it did establish assumption of risk; and (3) whether there was error in the charge relating to the measure of damages.

On the first question it appears that, when deceased was last seen prior to his injury, he was walking on a train of cars which was being moved on the "ladder" track to place two of the cars on a storage track of defendant's Newport News yard. Deceased was the conductor in charge of the movement; and, shortly before reaching track 3, he instructed the witness Mills to drop the two cars and come back to track 3 where deceased would be checking out some cars. When Mills returned about ten minutes later, he found deceased lying near track 3 with both legs cut off above the knees and rapidly bleeding to death. One leg had been completely severed from the body and was lying between the rails of the "ladder" track; the other was hanging to his body by mere shreds of flesh. Mills asked what had happened; and deceased, pointing to the car on track 3, replied, "That car knocked me off." Defendant duly objected and excepted to the admission of this declaration of the deceased; but the court admitted it as a part of the res gestc.

We think that this ruling of the court was correct. There is some authority for the position of defendant that the declaration of decedent should be excluded as a mere narrative of a past transaction; but we think that the better rule, and that supported by the weight of modern authority, requires its admission as having been made under the immediate influence of the occurrence to which it related and so near the time of that occurrence as to negative any probability of fabrication. See 31 Yale L. Journal 229, 35 H. L. R. 447; Wigmore on Evidence (2d Ed.) § 1747 et seq. and cases cited. As pointed out by Professor Wigmore, it is not necessary to render such declarations admissible that they be strictly contemporaneous with the occurrence to which they relate and admissible under what it called the "Verbal Act" doctrine. They are admissible, not because they fall without the hearsay rule, as in the case of "verbal acts," but because they fall within an exception to that rule; it being considered that there is a sufficient guarantee of the trustworthiness of such declarations to render them admissible, if they are made under the immediate influence of the occurrence to which they relate. "The circumstantial guarantee here consists in the consideration * * * that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual impressions and belief." To render them admissible what is required is: (1) There be some shock to the feelings sufficient to render the utterance spontaneous and unreflecting; (2) "the utterance must have been before there has been time to contrive and misrepresent, i. e. while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance"; and (3) it must relate to the circumstance causing the shock to the feelings. Wigmore on Evidence (2d Ed.) § 1750.

Defendant places great reliance upon the decision of the Supreme Court in Vicksburg R. R. v. O'Brien, 119 U. S. 99, 7 S. Ct. 118, 30 L. Ed. 299, where the declaration of an engineer as to the speed at which a wrecked train was traveling was excluded when made from ten to thirty minutes after the wreck occurred. In that case, however, it did not appear that the engineer was suffering from any such shock as was the decedent here, or that the surrounding circumstances furnished any such guaranty of trustworthiness. The case at bar is more nearly like that of Travelers' Insurance Co. v. Mosley, 8 Wall. 397, 408, 19 L. Ed. 437, where upon the trial of an issue as to accidental death the court held admissible declarations by the deceased shortly after receiving his injury to the effect that he had fallen down a stairway and struck his head. What was said by Mr. Justice Swayne, speaking for the court in that case, is applicable here. Said he: "Here the principal fact is the bodily injury. The res gestc 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. Where sickness or affection is the subject of inquiry, the sickness or affection is the principal fact. The res gestc are the declarations tending to show the reality of its existence, and its extent and character. The tendency of recent adjudications is to extend rather than to narrow, the scope of the doctrine. Rightly guarded in its practical application, there is no principle in the law of evidence more safe in its results. There is none which rests on a more solid basis of reason and authority. We think it was properly applied in the court below. In the ordinary concerns of life, no one would doubt the truth of these declarations, or hesitate to regard them, uncontradicted, as conclusive. Their probative force would not be questioned. Unlike much other evidence, equally cogent for all the purposes of moral conviction, they have the sanction of law as well as of reason. The want of this concurrence in the law is often deeply to be regretted. The weight of this reflection, in reference to the case under consideration, is increased by the fact, that what was said could not be received as `dying declarations,' although the person who made them was dead, and hence, could not be called as a witness."

In Cross Lake Logging Co. v. Joyce (C. C. A. 8th) 83 F. 989, 991, the court held admissible as a part of the res gestc a statement made by an injured man as to the cause of his injury to a fellow workman who came to his assistance. The court, speaking through Judge Thayer, said: "It is manifest, we think, that the statement made by the plaintiff to Bolin, to which the objection related, was properly admitted in evidence as a part of the res gestc, because it was so nearly coincident with the occurrence to which it referred that the statement may be regarded as having been made almost involuntarily, without time for reflection, when the plaintiff's mind was vividly impressed with the true cause of his injury. Statements thus made, which are not a narrative of a past transaction, but spring naturally and without premeditation from the lips of an injured person in the very presence of the circumstances which have produced it, and while the victim is perhaps writhing in pain, are of the highest value as evidence. Railroad Co. v. Lyons, 129 Pa. 114, 18 A. 759 15 Am. St. Rep. 701; Railway Co. v. Buck, 116 Ind. 575, 19 N. E. 453 2 L. R. A. 520, 9 Am. St. Rep. 883; State v. Murphy, 16 R. I. 529, 17 A. 998; Com. v. Hackett, 2 Allen Mass. 136, 139; Greenl. Ev. § 108."

In Peirce v. Van Dusen, 78 F. 693, 707, 69 L. R. A. 705, the Circuit Court of Appeals of the Sixth Circuit, speaking through Mr. Justice Harlan, pointed out that the res gestc rule cannot be construed so narrowly as to exclude declarations "which did not occur on the very instant of the grinding of the flesh and bones." And in Standard Oil Co. v. Johnson (C. C. A. 1st) 299 F. 93, the rule was held to cover the declaration of a bystander made to the driver of an automobile following an accident, to the effect that the driver had not blown his horn and his silence in the face of this accusation.

One of the leading cases upon the subject is Commonwealth v. McPike, 3 Cush. (Mass.) 181, 50 Am. Dec. 727. In that case a woman, after being stabbed, ran up a stairway and was found bleeding upon the floor of an upstairs room. She asked that a physician be called, saying that her husband had stabbed her and telling what she wished done if she died. This was admitted, not as a dying declaration, but as a part of the res gestc; the court saying: "The admission in evidence of the statement of the party injured, as to the cause and manner of the injury which terminated in her death, may be sustained upon the ground, that the testimony was of the nature of the res gestc. The witness describes the situation in which he found the party, her appearance, and her request for assistance, and, in connection therewith, her declaration of the cause of the injury. The period of time, at which these acts and statements took place, was so recent after the receiving of the injury, as to justify the admission of the evidence as a part of the res gestc. In the admission of testimony of this character, much must be left to the exercise of the sound discretion of the presiding judge."

While a logical basis is not always given for the decisions, the cases almost uniformly hold that a statement made by an injured person as to the cause of his injury is admissible if the time which has elapsed since the injury is so short that he is still...