Brashear v. Missouri Pac. R. Co.

• Decision Date: 21 May 1928
• Docket Number: No. 15972.,15972.
• Citation: Brashear v. Missouri Pac. R. Co., 6 S.W.2d 650 (Mo. App. 1928)
• Parties: BRASHEAR v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

6 S.W.2d 650

BRASHEAR v. MISSOURI PAC. R. CO.

No. 15972.

Kansas City Court of Appeals. Missouri.

May 21, 1928.

Appeal from Circuit Court, Cole County; H. J. Westhues, Judge.

"Not to be officially published."

Action by Florence Brashear, administratrix of the estate of Clarence C. Brashear, deceased, against the Missouri Pacific Railroad Company. Judgment for plaintiff. From an order sustaining defendant's motion for a new trial, plaintiff appeals. Affirmed.

D. W. Peters, of Jefferson City, for appellant.

Montgomery, Rucker & Hayes, of Sedalia, for respondent.

BLAND, J.

This is an action under the Federal Safety Appliance Act (45 USCA §§ 1-7; Comp. St. §§ 8605-8612) to recover for the death of plaintiff's husband. The jury assessed plaintiff's damages at the sum of $5,000 and damages to the minor child of plaintiff and deceased at the sum of $1,000, and judgment was entered accordingly. Defendant filed a motion for a new trial, which the court sustained on account of "error in admitting evidence of statement by deceased as to the accident." Plaintiff has appealed.

The facts show that Clarence C. Brashear was, on the 30th day of May, 1925, and had been, for some years, employed by the defendant in its railroad yards at Jefferson City. The switching crew at the time in question consisted of L. A. Adams, foreman, Pat Cronin, and deceased. Their working hours were from 4:00 p. m. to 12:00 midnight. The foreman of the crew remained near the engine and directed the switching operations; Cronin was stationed upon the engine for the purpose of throwing the switches and "cutting" cars loose from the engine; deceased was stationed at a point on the track where cars were being coupled and uncoupled. It was deceased's duty to see that cars were coupled when they were desired to be.

Adams testified that on the evening of the day in question he was standing "up in the lead cutting * * * off" the cars; that deceased was 15 to 20 car lengths away, making couplings and giving signals; that between 9:30 and 10:00 o'clock deceased came to Adams and told him that he had "got a lick on the head and elbow back there awhile ago when he was adjusting a knuckle." At this time Adams was on the footboard of the engine.

Adams at another place in his testimony stated that "when he (deceased) got on the footboard" the latter said "he got a lick on the head and a lick on the elbow back there awhile ago"; that deceased "told me he was making a coupling and a car came down and jostled him back and forth and hit him on the head; * * * he said that he was adjusting a knuckle." When asked how long before that time had he last seen deceased, he replied, "I had just seen his light down on the track, but as to being right close to him it had been 30 to 45 minutes." All of the evidence relating to what deceased said to Adams was admitted over the objection of defendant. Adams further testified that in case deceased was injured it was his duty to report to the witness and then to the superintendent; that deceased did not say how long it had been since he received the injury before he reported to the witness; that the witness did not see deceased get hurt and that there was no outward evidence of his having received any injury. There was no evidence that deceased said he was suffering any pain from the injury at the time the report was made or that he manifested any evidence of pain.

The evidence further shows that deceased continued to work until quitting time that night and worked until June 15, 1925, when he was required to quit work on account of severe headaches; that he worked intermittently until June 26th when he quit entirely. He died on July 18, 1925. The injuries he received at the time in question on May 30th consisted of a cut over the right eye, one on the bridge of the nose, the breaking of the skin and the bruising of his head. The autopsy showed that there was evidence that deceased had sustained a brain hemorrhage several weeks prior to the one that resulted in his death.

The petition charges that deceased was injured by reason of having gone between the cars for the purpose of adjusting a coupling appliance so that the same would couple whereas it was the duty of defendants, under the Safety Appliance Act, to have its cars equipped with couplers that would couple automatically by impact without the necessity of deceased's going between the cars.

We think that the court properly granted defendant a new trial as error was plainly committed in permitting Adams to testify as to statements of deceased made after the accident. It was not shown that these statements were part of the res gestæ. From all that the record shows they may have been and probably were a mere narration rather than a spontaneous declaration of the deceased as to how the accident happened. While the time that elapses between the occurrence and the declaration is not controlling, it is an important matter for consideration in determining whether the declaration is a part of the res. There is no testimony as to...