Adams v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1881
• Citation: 74 Mo. 553
• Court: Missouri Supreme Court
• Parties: ADAMS v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

74 Mo. 553

ADAMS

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Livingston Circuit Court.--HON. E. J. BROADDUS, Judge.

REVERSED.

Geo. W. Easley for appellant.

The deceased voluntarily placed himself in a hazardous position, and there can be no recovery for his death. Hallihan v. R. R. Co., 71 Mo. 113; Lake Shore R. R. Co. v. Hart, 87 Ill. 529. The evidence as to the statement made by the fireman was inadmissible. McDermott v. R. R. Co., 73 Mo. 516; Garth v. Howard, 8 Bing. 451.

Luther T. Collier and Kemp & Henry for respondent, cited Brownell v. R. R. Co., 47 Mo. 239; Harriman v. Stowe, 57 Mo. 96; Hanover R. R. Co. v. Coyle, 55 Pa. St. 402; Insurance Co. v. Mosley, 8 Wall. 397; Comm. v. McPike, 3 Cush. 181; People v. Vernon, 35 Cal. 50; Mitchum v. State, 11 Ga. 615; Reg. v. Lunny, 6 Cox C. C. 477; Rex v. Foster, 6 C. & P. 325; Aveson v. Kinnaird, 6 East 193; Rawson v. Haigh, 2 Bing. 99; Whittaker v. R. R. Co., 5 Rob. (N. Y.) 650; 1 Greenleaf Ev., §§ 113, 114; 1 Story Agency, §§ 134, 137; Va. & Tenn. R. R. Co. v. Sayers. 26 Gratt. 328; s. c., 15 Am. Law Reg. (N. S.) 306.

HENRY, J.

This is an action by respondent to recover damages against defendant, for the death of her husband alleged to have been caused by the negligence of defendant's servants, in managing and operating a train on its railroad.

On the 20th day of July, 1878, the deceased, fifty or or sixty years of age, in company with his three sons, was walking on the railroad. The deceased saw the train coming, a half mile away, before he went upon a long trestle west of Chillicothe. After getting on the trestle, the oldest son, who was about fourteen years of age, told him he had better come back, but the deceased said he thought he could cross the trestle and get away. They had proceeded about one-third of the way across the trestle, when the oldest boy turned back and got off. The others went forward, and when about half way over the trestle, the father and younger son sat down on the ends of the ties, and the engine and three or four cars passed without injuring them, when the deceased raised up and was struck, knocked off, and received injuries which caused his death.

The negligence of the deceased was such as to preclude a recovery unless the servants of the defendant running the train saw the danger to which he had exposed himself, in time to stop the train and avert the calamity. It is no defense to the action that he was guilty of negligence in going on the trestle, no matter how gross, if the servants of the company saw him on the trestle, and after discovering him there, could have stopped the train and thus avoided injuring him. His negligence then ceases to be a matter for consideration.

As to whether defendant's said servants saw the deceased on the trestle, and could then have stopped the train and prevented the accident, the plaintiff was permitted to prove by a witness that after deceased was struck,; and after the train was stopped, two of the trainmen, whom he 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.” The principal question in the case is, whether this evidence was admissible or not.

1. DECLARATIONS OF AGENT AS EVIDENCE AGAINST PRINCIPAL.

But few questions of more difficulty, are submitted for determination, than those in regard to the admissibility of statements as part of the res gestae. The general principles on the subject are well settled, and, if they had been uniformly adhered to in the adjudicated cases, the conflict in the decisions would have been avoided. The declarations of an agent are admissible as evidence against his principal, only when made while transacting the business of the principal and as a part of the transaction which is the subject of inquiry in the suit in which they are offered. They are then admitted as ““verbal acts,” and part of the res gestae. What he may have said before the transaction is entered into, or after its completion, as explanatory, is no more admissible than if made by a stranger. Ladd v. Couzins, 35 Mo. 516; McDermott v. H. & St. Jo. R. R. Co., 73 Mo. 516. “Anything in the nature of narrative, is to be carefully excluded.” Bacon v. Inhabitants of Charlton, 7 Cush. 586; and in Lund v. Inhabitants of Tyngsborough, 9 Cush. 42, the same court said: ‘There must be a main or principal fact, or transaction, and only such declarations are admissible as grow out of the principal transaction, illustrate its character, are contemporary with it, and derive some degree of credit from it.” In Luby v. Hudson R. R. R. Co., 17 N. Y. 133, the court of appeals observed: “The declarations of an agent or servant do not in general bind the principal. Where his act will bind, his statements and admissions, respecting the subject matter of those acts will also bind the principal, if made at the same time and so that they constituted a part of the res gestae. To be admissible, they must be in the nature of original, and not of hearsay evidence; they must constitute the fact to be proved, and must not be the mere admission of some other fact. They must be made not only during the continuance of the agency, but in regard to a transaction depending at the very time.” These general principles are recognized by all the cases on the subject, and the conflict between them has arisen in the application of the principles to the facts of the particular case.

The observations above quoted from the opinion of the New York court of appeals, were made in a case strongly resembling the case at bar. The defendant was sued for negligently running a railroad car, drawn by horses, against the plaintiff, in one of the streets of the city of New York. A police officer was allowed to testify that he arrested the driver directly after the accident, the citizens having stopped the car, and the driver having got outside the crowd which had gathered, and, on being arrested, assigned as a reason why he did not stop the car that the brakes were out of order. The court of appeals held it error to admit the testimony, and observed that: “The alleged wrong was complete, and the driver when he made the statement was only endeavoring to account for what he had done. He was manifestly excusing himself and throwing the blame on his principal.” Here the servant who remarked to his fellow-servant: “If you had stopped the train when I told you, you would not have killed him,” was only endeavoring to exculpate himself and throw the blame on his fellow-servant, and neither his remark nor the reply to it by the other, was made in the prosecution of the business of their employer, nor did they immediately precede or accompany the act which led to the catastrophy, or constitute any part of that act, but if admissible at all would only go to show another fact, and were not of themselves facts to be proved as “verbal acts.” They were only intended to prove another fact.

The cases of Insurance Co. v. Mosley, 8 Wall. 397; Comm. v. McPike, 3 Cush. 181, and Brownell v. Mo. Pac. R'y Co., 47 Mo. 243, relied upon by respondent's counsel, were not cases in which the declarations of agents...