Atchison v. Logan

• Decision Date: 06 December 1902
• Docket Number: 12,778
• Citation: 70 P. 878,65 Kan. 748
• Parties: ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY v. PATRICK LOGAN et al
• Court: Kansas Supreme Court

70 P. 878

65 Kan. 748

ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY v. PATRICK LOGAN et al

No. 12,778

Supreme Court of Kansas

December 6, 1902

Decided July, 1902.

Error from Leavenworth district court; LOUIS A. MYERS, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS -- Injury to Employee -- Ante-mortem Statement. A railway switchman, in attempting to uncouple two freight-cars while they were in motion, fell between them, receiving injuries which resulted in death soon thereafter. After he was removed from under the cars he told the foreman in charge of the train to call some one; that he wanted to make a statement. The foreman signaled the engineer, who moved his engine toward the place where the switchman was lying, got down, and arrived at his side about five minutes after the accident. In response to a question as to what the switchman wanted, the latter narrated briefly how the accident happened. Held, that the declarations were not a part of the res gestae, and inadmissible.

2. RAILROADS -- Statements Included within the Res Gestae. A spontaneous utterance, an ejaculation, an intuitive explanation of a hurt, generated by pain or excitement, are properly included within the res gestae; but a statement made after apparent delay showing calculation, and a reflective, thoughtful purpose to postpone the making of it until witnesses are present to attest the words spoken, removes the narrative to the category of a self-serving declaration, and renders it inadmissible in evidence.

A. A. Hurd, and O. J. Wood, for plaintiff in error.

John H. Atwood, and J. C. Petherbridge, for defendants in error.

SMITH J. All the Justices concurring.

OPINION

SMITH, J.:

This was an action brought by Patrick and Eliza Logan, as parents and next of kin, to recover damages by reason of the death of their son, William T. Logan, who was killed by the cars of the Atchison, Topeka & Santa Fe Railway Company, in the company's yards at Arkansas City. They had judgment in the court below.

The deceased was a switchman. He went between a coal-car and an oil-tank car to uncouple them while they were in motion. Standing on a brake-beam, and while the cars were being pushed by a switch-engine at a speed of about six miles per hour, one Cooper, foreman of the switching crew, without receiving any signal from Logan, motioned to the engineer to stop. This was done, and a few moments later it was discovered that Logan had been run over. Four or five minutes after the injury, Logan made a statement in the presence of Cooper and the engineer. He said that "he tried to raise the lever on this side, and he could not, and when he went in between them to get to the one on the opposite side, he was jerked off." This testimony was offered on behalf of plaintiff below, and received over the objection of the railway company. It was material.

It is necessary, to a proper understanding of the facts which led up to this statement of the deceased, to set out the testimony of the witness Cooper, who detailed them:

"Ques. Then, I understand you to say that, immediately after the train had passed over him, you and Mr. Dowhen pulled him out from under the cars? Ans. Yes, sir.

"Q. What did you do with him? A. Laid him on the ground near by.

"Q. Did the deceased, Logan, make any statement at that time, as to how the injuries occurred? A. He did.

"Q. How soon after he received his injuries did he make this statement? A. About four or five minutes.

"Q. And where was it made? A. He was lying there on the ground at the time.

"Q. Was he in plain view of the car that had run over him? A. Yes, sir.

"Q. About how many feet away from the place where he was hurt? A. About two or three feet.

"Q. Who was present? A. No one but myself, at the time he said he wanted to make the statement.

"Q. Who was present at the time he made the statement? A. Engineer, Mr. Edward German.

"Q. Did Mr. Logan die soon after the statement was made? A. Yes, sir.

"Q. How soon afterwards? A. I do not know the exact moment he died; about thirty minutes.

"Q. Now, you may state what he said relative to how he received the injuries. A. He told me to call some one, that he wanted to make a statement, and I backed Mr. German down over the switch with the string of cars, and gave him the signal to come ahead, to get him up closer to me, so I could call him; and I called Mr. German, and he came down and asked Mr. Logan what it was he wanted, and Mr. Logan said he wanted to say that he tried to raise the lever on this side, and he could not, and when he went in between them to get to the one on the opposite side, he was jerked off."

The statement of Logan was received in evidence as a part of the res gestae, and its admissibility is defended by counsel for defendant in error on that ground. Counsel on the other side contend that the statements of the injured person, made five minutes after the accident, were but the narrative of a past transaction not accompanying the principal fact, and hence not receivable in evidence.

There is much conflict in the authorities respecting the admissibility of such declarations, but we are not called on by the circumstances of this case to decide the question on the objection made to the evidence by the railway company as above stated. Here the account given by the deceased respecting the manner of his injury was preceded by much deliberation. When lying on the ground, with no other person than Mr. Cooper present, he said he desired to make a statement. He requested Cooper to call some one, and delayed making any communication until Mr. German, the engineer backed his engine down over a switch and then came forward near the place where. he (Logan) was lying. Upon the approach of the engineer, the latter asked him what he had to say. His...