Bumgardner v. Southern Ry. Co.
| Decision Date | 28 April 1903 |
| Citation | 43 S.E. 948,132 N.C. 438 |
| Parties | BUMGARDNER v. SOUTHERN RY. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Iredell County; Neal, Judge.
Action by C. B. Bumgardner against the Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.
Where a brakeman alleged that he was injured by a collision of two sections of a freight train which had broken in two, an instruction that if the conductor of the train was required to be in the caboose, and at the time of plaintiff's injury he was, without necessity, on the second engine of the train, and that if he had been in the caboose he could have given signals to plaintiff, and assisted plaintiff in stopping the second section, and prevented the collision, and that such failure was the proximate cause of the injury, and if defendant failed to use ordinary care, defendant was guilty of negligence, was error, as assuming that the train had become separated, and that the collision afterwards occurred, which were material questions at issue.
L. C Caldwell, for appellant.
G. B Nicholson, for appellee.
This action was brought by the plaintiff to recover damages for personal injuries alleged to have been received by him through the negligence of the defendant. In his complaint the plaintiff alleges that, while he was engaged in his duties as brakeman on a very long freight train of the defendant, the train became uncoupled, and, upon the sections coming together again with great violence, he was thrown to the ground and upon the track, and received dangerous and painful injuries. The allegations of negligence were a lack of sufficient number of employés to manage the train, and that the conductor of the train was not at his post of duty--in the caboose or cupola--where he was required to be by the rules of the company, that he might keep a proper lookout; and because of such failure to furnish a sufficient force to man the train, and because of the failure of the conductor to be at his post to give proper signals of the separation of the train, and of the subsequent collision, the plaintiff received his injury. The questions, then, whether a separation of the cars took place, and whether there was a subsequent collision of the sections, were the material points in the case. Upon these matters his honor gave at the request of the plaintiff the following instruction: "If the jury find by the greater weight of the evidence that the conductor on the train was required, under the rules of the company, to be in the caboose, and that at the time of the plaintiff's injury he was, without necessity, on the second engine, about 45 cars in front of the caboose, while the train was in motion, and you further find that if he had been in the caboose, according to rule No. 465, and on the lookout, that he could have given signals to the plaintiff, and could have assisted the plaintiff in stopping the second section, and prevented the collision and injury, and that this failure on his part was the proximate cause of the injury to the plaintiff, and that the defendant failed to use ordinary care, you are instructed to find the first issue (as to the injury of the plaintiff by the defendant's negligence), 'Yes.' There is clear error in that instruction, for it included the assumption that the train had become separated, and that a collision afterwards occurred--the very matters which were in contention between the parties.
Although there must be a new trial for the error pointed out, we think it better for all concerned to call attention to another error upon a question of evidence, because of its importance and because it is almost certain that it will arise again on the next trial. The plaintiff, as a witness for himself, testified that when he fell from the car the wheels ran over and crushed his left leg; that upon hitting the ground he made an outcry for help--cried out very loudly; that he took off his suspenders, and was cording his leg to prevent further bleeding, when a Mr. Spurgeon (who was dead at the time of the trial) came up to where he was lying, having heard the outcries; that Spurgeon came up a minute and a half or two minutes after the plaintiff was hurt. At the morning session of the court the witness said that when Spurgeon came up the train had already pulled by, not more than 300 yards; that it was not out of sight. When the court convened after a recess, continuing his testimony, he said that when Spurgeon came up the train had gone but a short distance away, the rear end of the caboose being about 100 feet or more. Then he added, "Probably a little further than a hundred feet." Under those circumstances, the plaintiff was allowed, over the objection of the defendant, to testify that when Spurgeon came up he said to the witness, "That train was parted when it passed me about two car lengths, and I thought it was going to hit." We think the evidence should not have been admitted. It was not a part of the res gestae. The law proscribes hearsay evidence, but there are certain necessary exceptions to that general rule. Amongst those exceptions are certain declarations made at the time of the main transaction--the principal fact under investigation--if they are connected with the transaction, and explain it as to its character and purpose. Such declarations are often called "verbal acts indicating a present purpose and...
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