Callahan v. Chicago, B. & Q.R. Co.

• Decision Date: 17 May 1913
• Citation: 133 P. 687,47 Mont. 401
• Parties: CALLAHAN v. CHICAGO, B. & Q. R. CO.
• Court: Montana Supreme Court

133 P. 687

47 Mont. 401

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

Supreme Court of Montana

May 17, 1913

Appeal from District Court, Yellowstone County; Geo. W. Pierson Judge.

Action by Matthew Callahan against the Chicago, Burlington & Quincy Railroad Company, a corporation. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Enterline & La Fleiche, of Sheridan, Wyo., and Walsh & Nolan, of Helena (T. J. Walsh, of Helena, of counsel), for appellant.

O. F Goddard and E. T. Clark, both of Billings, and Gunn, Rasch & Hall, of Helena, for respondent.

BRANTLY C.J.

Action by the plaintiff for damages for personal injuries suffered by him during the course of his employment by the defendant. The accident occurred on September 20, 1909. The defendant owned and was operating a line of railway extending through the states of South Dakota, Wyoming, and into and through portions of the state of Montana, and was engaged as a common carrier in interstate commerce. The plaintiff was in its employ as extra gang foreman, having under his charge a crew of laborers engaged in making repairs upon its tracks. He and the crew were required to occupy and live in outfit cars, so that they could be readily moved from place to place as the exigencies of their service required. One of these cars was occupied by plaintiff and his wife. It was fitted up with a stove, bedding, and other household furniture necessary to make it habitable. On the day of the accident the cars were being transferred from Dewey, S. D., to New Castle, Wyo., so that the crew could effect repairs near the latter place. They were attached to the rear end of a freight train consisting of 51 cars. At a point about seven miles east of Dewey, while ascending a grade, the train parted, with the result that by the sudden stoppage occasioned by the automatic setting of the airbrakes the plaintiff was thrown violently back and against a box in the rear end of the car and thereby suffered the injuries complained of. It is alleged that the defendant was negligent in placing in the train a car equipped with a coupler which was unsafe, defective, and insecure, in that the part thereof known as the lock block had become worn and loose, a fact which was known to the defendant, or by the exercise of ordinary diligence on its part ought to have been known to it, but was not known to the plaintiff. The complaint then alleges:

"Sixth. That on the said 20th day of September, 1909, while said train was being moved by the defendant along and upon its said track and railroad from Dewey, S. D., to New Castle, Wyo., at a rate of speed of about 20 miles per hour, the said coupler upon said car in said train, by reason of its being defective, worn, and insecure, and because the defendant carelessly and negligently failed and neglected to keep the same in good repair and in a safe and sound condition, and because of the negligent and careless operation of said train by said defendant, loosened and came apart, causing the said train instantly to part, thereby breaking the air hose of said train which controlled the brakes upon the cars. That the parting of said train and the breaking and separating of said air hose caused the brakes upon the cars to which said outfit car was still attached, including the brakes on said outfit car, to become suddenly and violently set, thereby causing said train and cars last mentioned violently and suddenly to stop, whereby the said plaintiff was thrown with great force and violence backward a distance of about 12 feet along and in the interior of said car, wherein he was then riding, against and upon a box in said car." The answer denies all of the allegations of the complaint, except that it admits that at the time of the accident the defendant was engaged in interstate commerce. It alleges certain matters as affirmative defenses, upon which there was issue by reply. The issues presented on this branch of the case do not require notice. At the close of plaintiff's case the court sustained a motion for nonsuit and directed judgment for the defendant. This appeal is from the judgment. The two questions presented for decision are whether the exclusion of certain evidence was error, and whether the evidence was sufficient to take the case to the jury.

1. During his examination in chief, counsel for plaintiff inquired of him whether he was acquainted with the duties of a conductor on the defendant's road. He was not permitted to answer. Counsel then offered to have him testify, in substance, that when such an accident as the one in question occurs it is the duty of a conductor to ascertain its cause, to restore the connection, if possible, and proceed with the train, to ascertain if any person has been injured, and, if so, also the nature and extent of the injury, and to make full report of the facts to his superior officers; that when the train parted the conductor at once proceeded forward from the caboose, where he then was, to ascertain the cause; that in passing the car in which plaintiff and his wife were he ascertained that plaintiff had been injured; that he then said that he was going forward to inquire the cause of the accident; that, the connection being restored, the train proceeded immediately to New Castle, arriving there 30 or 40 minutes later; that the conductor then returned to the plaintiff's car and made inquiry as to the extent of the injury, in order to make his report of it; and that during the course of the inquiry, in response to a question by plaintiff as to the cause of the accident, he said that the train had parted "because of a defective coupler--a worn lock block." An offer was also made to show by this witness that a similar duty to investigate and make report is required of a roadmaster; that when the train arrived at New Castle defendant's roadmaster came to plaintiff's car and, after inquiry as to the nature and extent of the injury, wrote out his report; and that while so doing he stated to plaintiff that the parting of the train was caused by a "defective coupling--a worn lock block." This evidence was excluded, on the ground that the declarations were not part of the res gestæ, and were therefore incompetent.

The statute provides that where "the declaration, act or omission forms part of a transaction, which is itself the fact in dispute, or evidence of that fact, such declaration act, or omission is evidence, as part of the transaction." Rev. Codes, § 7867. This provision was not intended to embody the statement of a rule by which to determine the competency of such declarations as those in question, but to be a mere direction that they must be deemed competent when they are so connected with the main transaction as to form a part of it. It states one of the exceptions to the general rule recognized by all the courts in common-law jurisdictions which requires the exclusion of hearsay statements, viz., that when declarations by the participant in or an observer of the litigated act are so nearly connected with it in point of time that they may be regarded as a spontaneous, necessary incident, explaining and characterizing it, they may be proved as a part of it without calling the person who made it. The principle upon which the exception is founded is that the declarations were made while the mind of the speaker was laboring under the excitement aroused by the incident, before there was time to reflect and fabricate, and hence the solemnity of the oath is not necessary to give it probative value. Such statements need not be strictly contemporaneous with the main incident. They may be in the form of narrative; yet if the circumstances show they were made while the excitement produced by the incident still dominated the mind and was the producing cause they are nevertheless part of the main incident and competent. On the contrary, if they are in fact mere narrative, they are not competent. In State v. McDaniel, 68 S.C. 304, 47 S.E. 384, 102 Am. St. Rep. 661, the court said: "If the declarations are a mere narration of a past occurrence, they are not admissible as res gestæ. * * * When the declarations are not precisely concurrent with the transaction, a delicate and complex question is presented to the trial judge in determining their admissibility, and each case must be decided upon its own circumstances. In the nature of the case there can be no hard and fast rule as to the precise time near an occurrence within which declarations explanatory thereof must be made, in order to be admissible. The general rule is that the declarations must be substantially contemporaneous with the litigated transaction and be the instinctive, spontaneous utterances of mind while under the active, immediate influences of the transaction; the circumstances precluding the idea that the utterances are the...