Alsever v. Minneapolis & St. Louis Railroad Co.

• Decision Date: 23 January 1902
• Citation: 88 N.W. 841,115 Iowa 338
• Parties: MILDRED ALSEVER, by her next friend, M. G. Alsever v. THE MINNEAPOLIS & ST. LOUIS RAILROAD COMPANY, Appellant
• Court: Iowa Supreme Court

88 N.W. 841

115 Iowa 338

MILDRED ALSEVER, by her next friend, M. G. Alsever v. THE MINNEAPOLIS & ST. LOUIS RAILROAD COMPANY, Appellant

Supreme Court of Iowa, Des Moines

January 23, 1902

Appeal from Webster District Court.--HON. S. M. WEAVER, Judge.

THE defendant appeals from a judgment for damages.

Affirmed.

R. M Wright for appellant.

Botsford Healy & Healy for appellee.

LADD C. J. WEAVER, J., took no part.

OPINION

LADD, C. J.

The defendant's train had stopped at Burnside shortly after 12 o'clock m. May 25, 1899. Attached to the engine was a device known as the "McIntosh Blow Off Cock," used for the purpose of cleansing the boiler of sediment by forcing water through it from the bottom at great pressure. At that time the plaintiff, then eight years old, was standing, with other children, on the side of a corncrib about 7 feet above the ground, and some 20 feet from the engine, looking at it through an opening. In operating the blow-off cock, hot steam or spray was thrown on the crib, and possibly on plaintiff, thereby so frightening her that she fell, breaking a leg. She then moved from the crib to a pile of cobs near by. Her screams immediately brought her father, Cox, and the engineer. The father testified: "A While I was standing near the end of the crib I saw the children at the opening on the east side, and all of a sudden I heard a terrible roar, and I turned and saw a cloud of steam coming from the engine to the crib, and in a moment I heard a cry; and I ran around from the north to the west side of the crib, and found the engineer, Mr. Taft, there, and the child was on a pile of cobs. Q. What, if anything was said by the engineer at that time in reference as to how the accident happened? A. He says, 'I was only having a little fun with the children.' Q. What had you said to him that brought forth the remark? A. I says, 'What is the matter here?' Q. What did the engineer say if anything respecting the accident, and how it was caused, or what he intended to do? A. What he said was that he had no idea of hurting the children, or hurting any one (I do not know the exact words he used), or something to that effect; but, anyway, that he had no idea of hurting the children. Q. What else did he say at the same time? A. He said he had no idea of hurting the children,--just for the idea of having a little sport with them, or fun; that he was just going to have a little sport with the children. Q. Was this all said at the one time? A. Yes, sir; this was said not over a minute after I heard the noise from the engine, and the child scream. I would think it was less than a minute. I know that when the child screamed he ran right around there. We all three met there about the same time." The evidence of Cox was to the same effect. The objection interposed by defendant, that this formed no part of the res gestae, was overruled. As the crib was on the depot grounds, the court held that the defendant owed no positive duty to plaintiff; and that therefore this evidence was of controlling importance in determining whether the engineer, in blowing off the hot steam or spray, knew that plaintiff was in a place of danger. It will be noticed that the evidence tended to show that conversation occurred within a minute after the use of the blow-off cock, and as soon as the engineer could reach the point where the injured child was lying, to ascertain the result of what had been done. The opening of the blow-off cock, the rush of steam and spray, the scream of the child, the question of the father, the statement of the engineer, all within a few seconds, were so immediately connected as to constitute one transaction. What forms a part of the res gestae must of necessity depend on the facts of each particular case. A mere account of a past occurrence, or purely an opinion of what has happened, is to be rejected. Declarations, to be received, should derive credit, not from the declarant, but from their connection with the principal fact of which complaint is made. The rule is concisely stated thus in Hadley v. Carter, 8 N.H. 40: "Where declarations of an individual are so connected with his acts as to derive a degree of credit from such connection, independent of the declaration, the declaration becomes part of the transaction, and is admissible in evidence." In Felt v. Amidon, 43 Wis. 467 at 467-470, in quoting with approval from the case of Lund v. Inhabitants of Tyngsborough, 9 Cush. 36, the court said: "When the act of a party may be given in evidence, his declarations made at the time, and calculated to elucidate and explain the character and quality of the act, and so connected with it as to constitute one transaction, and so as to derive credit from the act itself, are admissible in evidence. The credit which the act or fact gives to the accompanying declarations, as a part of the transaction, and the tendency of the contemporary declarations, as a part of the transaction, to explain the particular fact, distinguish this class of declarations from mere hearsay. Such a declaration derives credit and importance as forming a part of the transaction itself, and is included in the surrounding circumstances, which may always be given in evidence to the jury with the principal fact. 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." The grounds upon which such statements have been received are generally concurred in. The difficulty has been in drawing a line with respect to lapse of time after, and the necessary connection with, the main act, so as to clearly distinguish between declarations which are admissible and those too remote and disconnected. In Keyes v. City of Cedar Falls, 107 Iowa 509, 78 N.W. 227, the rule to be deduced from our decisions is said to be that "if they are near enough in point of time to the principal transaction to clearly appear to be spontaneous and unpremeditated, and free from sinister motives, and afford a reliable explanation of the principal transaction, they are admissible in evidence." See International etc. Railway Co. v. Anderson, 82 Tex.Supp. 516 (27 Am. St. Rep. 902, note (s. c. 17 S.W. 1039); also Wilson v. Southern Pac. Co., 13 Utah 352 (57 Am. St. Rep. 766, 44 P. 1040, note (s. c. 44 P. 1040), where the true rule is accurately and comprehensively stated thus: "All declarations or exclamations uttered by the parties to a transaction which are contemporaneous with and accompany it, or which are made under such circumstances as will raise a reasonable presumption that they are the spontaneous utterances of thoughts created by or springing out of the transaction itself, or so soon thereafter as to exclude the presumption that they are the result of premeditation or design, and which are calculated to throw light on the motives and intentions of the parties are admissible in evidence as part of the res gestae." So immediately connected was the engineer's remark as to how it all happened with what preceded, that it was an explanatory exclamation, not merely an excuse or account of what had been done. The inquiry to which it was a response did not necessarily interrupt the connection. Indeed, the authorities put little stress on this circumstance. It is proper to be considered, however, in ascertaining the connection with the main fact, but not controlling. Neither can it make any difference that the statement was made by an employee or agent, rather than the principal or injured person. Declarations are received, as already pointed out, not on the credit or relation of the declarant, but because forming a part of the transaction; and it is immaterial by whom, if by some person whose conduct or condition, about which the statement is made, can be proven. Coll v. Transit Co., 180 Pa. 618 (37 A. 89). Nor is the fact that the statement was in the nature of an excuse enough alone to warrant its exclusion. The books indicate that many, if not most, of the declarations admitted as part of the res gestae, are of this character. If in the nature of an excuse, however, the fact is important in determining whether the statement was spontaneous and unpremeditated, or a mere opinion or conclusion based on a completed transaction. The declarations, if made by the engineer, were but the natural expressions of one so engaged, upon the discovery of the result of his diversion, and were so immediately connected in point of time and circumstance with what he had done as to exclude the probability of meditation, and, as we think, were properly received in evidence as a part of the res gestae. As sustaining our conclusion, see Fish v. Railway Co., 96 Iowa 702; Hermes v. Railway Co., 80 Wis....