Armil v. Chi., B. & Q. R. Co.

• Decision Date: 29 October 1886
• Citation: 30 N.W. 42,70 Iowa 130
• Parties: ARMIL, ADM'X, v. CHICAGO, B. & Q. R. CO.
• Court: Iowa Supreme Court

70 Iowa 130

30 N.W. 42

ARMIL, ADM'X,

v.CHICAGO, B. & Q. R. CO.

Supreme Court of Iowa.

October 29, 1886.

Appeal from Polk circuit court.

The plaintiff is the administratrix of the estate of her deceased husband, and seeks in this action to recover damages sustained, caused by the negligence of the defendant, whereby her husband was injured, and by reason of such injury he subsequently died. Trial by jury. Judgment for the defendant, and plaintiff appeals.Cole, McVey & Clark, for appellant.

Runnells & Walker, for appellee.

SEEVERS, J.

The defendant's road is constructed along and upon Elm street, in the city of Des Moines, several hundred feet. The petition states that the deceased, for a lawful purpose, started to walk diagonally across the railway track; that he was knocked down by a moving caboose; and that, when the caboose stopped, one of the wheels rested on his hand, which was so injured that it became necessary to amputate a portion of the hand, and in consequence of such injury the plaintiff's husband died. Counsel for the appellant state the grounds of negligence upon which a recovery is asked as follows: “ First. That the engine and cars causing the injury were placed in the hands of an incompetent person. Second. That at the time the accident occurred the defendant was using Elm street as a yard in which to store its said engine and trains, and the train of cars which caused said accident was not at the time in use in the ordinary course of traffic, but that said street, at the time of said accident, was being unlawfully used; that the defendant was a trespasser at the time of the accident; and that said unlawful use was the cause of the accident. Third. That the engine and train which caused the accident was moved in the night time, without lights or signals.”

1. The plaintiff was a witness in her own behalf, and her counsel asked her the following questions: “You say you saw your husband immediately after he came home, on the evening he was hurt? Yes, sir. What, if anything, did he say at that time with reference to the cause of his injury,--how it occurred?” To this question counsel for the defendant objected, and the objection was sustained. In so ruling, it is said the court erred, for the reason that the evidence sought to be introduced was a part of the res gestœ. It is uncertain at what time the accident occurred, and how long afterwards the supposed declaration was made. Counsel for the plaintiff say that such time could not have exceeded 30 minutes. Probably it was not less, but it might have been more, but could not, we incline to think, have exceeded an hour. It is difficult, if not impossible, to say definitely what constitutes a part of the res gestœ. No absolute rule is or can be established in relation thereto. A discretion is and must be reposed in the court, and therefore each case must largely depend upon the circumstances surrounding the transaction or res gestœ. If the proposed evidence is merely a narration of a past occurrence, then it cannot be received as proof of the existence of such occurrence. 1 Greenl. Ev. §§ 108-110. The res gestœ or transaction was the accident, and how it occurred. It is not essential that the declaration sought to be introduced in evidence was uttered at the identical time the accident occurred, but, if made soon afterwards, and explanatory thereof, it is admissible. State v. Jones, 64 Iowa, 349; S. C. 17 N. W. Rep. 911, and 20 N. W. Rep. 470;Insurance Co. v. Mosley, 8 Wall. 397. In the former, the declaration preceded the occurrence, but was made in anticipation of it, and as explanatory of a purpose. In the last case, the deceased, for a proper purpose, left his house in the night-time, and immediately upon his returning he stated that he had fallen down stairs, and hurt his head. This evidence was held admissible, by a divided court; and in People v. Davis, 56 N. Y. 102, it said, in relation thereto, that, “what may be regarded as a part of the res gestœ was certainly carried to its utmost limit by a majority of the court.” We are, however, we think, asked to go a step further than that case. In the cited case, the deceased left his bed, and passed out of his house, for a certain purpose; and, when he came back, said that, in accomplishing such purpose, he had fallen down stairs, etc. It seems to us that the declaration may be said to be explanatory of what occurred during his necessary absence; and while it may be difficult to draw a sharp distinction between that case and the one at bar, still we think there is a marked difference. In this case it does not appear when the deceased left home, or that he left there for the accomplishment of an avowed purpose. He did not voluntarily, and of his own accord, return home after the accident, but he was taken home by others; and the declaration sought to be introduced was not made on his own motion, as explanatory of either his absence or the condition he was in. We feel constrained to hold that the evidence sought to be introduced does not constitute a part of the res gestœ, and is therefore not admissible. People v. Davis, supra.

2. When the plaintiff was on the stand as a witness she was asked: “Did any interview take place between the deceased and the agent of the company after the injury?” The witness answered: “Yes, sir;” and stated that the name of the agent was Manly. Thereupon the plaintiff offered to prove the conversation between Manly and the deceased. Upon objection being made, the proposed evidence was rejected by the court, as we think rightly. We shall assume, as do counsel for the plaintiff, that there was no evidence tending to show the character of the powers and duties of Manly, or the nature of his agency. Before the declarations of an agent are admissible, the party offering to prove them must, at least, give some evidence tending to show that he had the power to act for his principal in relation to the matter in hand, and that the same was within the scope of his authority. Livingston v. Iowa Midland R. Co., 35 Iowa, 556; Verry v. Burlington, C. R. & M. R. Co., 47 Iowa, 549. 3. Thomas Williams, a witness for the plaintiff, testified that he saw the deceased when his hand was “under the engine wheel, and that he helped him home.” On cross-examination, the defendant asked the witness: “Was there anything said by any one about his being intoxicated?” This question the abstract shows was “objected to” by plaintiff, but no ground of objection was stated. The objection was overruled. Whether such an objection is entitled to consideration we shall not stop to inquire. It is urged in argument that the question asked was not proper as cross-examination. Possibly this may be so, but it does not follow that the judgment must be reversed. The court is vested with a discretion in this respect, and, unless prejudice is shown, the error, if it be such, will be disregarded. Neil v. Thorn, 88 N. Y. 270. It clearly appears, from the whole record before us, that the plaintiff was in no manner prejudiced by the introduction of the evidence at the time this was done.

4. An ordinance of the city of Des Moines granted to the Des Moines & Knoxville Railroad Company the right of way over and along Elm street, and authorized said company to “lay down a double or single track, with side tracks, turnouts, and switches, on the said Elm street, and to run locomotives and...