Champlin v. Pawcatuck Valley St. Ry. Co.

• Decision Date: 15 March 1912
• Parties: CHAMPLIN v. PAWCATUCK VALLEY ST. RY. CO.
• Court: Rhode Island Supreme Court

82 A. 481

33 R.I. 572

CHAMPLIN

v. PAWCATUCK VALLEY ST. RY. CO.

Supreme Court of Rhode Island.

March 15, 1912.

[Copyrighted material omitted.]

Exceptions from Superior Court, Washington County; George T. Brown, Judge.

Action by George E. Champlin against the Pawcatuck Valley Street Railway Company. Verdict for plaintiff. Defendant brings exceptions. Case remitted, with directions to enter judgment for plaintiff.

A. B. Crafts, for plaintiff.

Everett A. Kingsley and Donald G. Perkins, for defendant.

JOHNSON, J. This is an action of the case, brought by George E. Champlin, of Westerly, in Washington county, against the Pawcatuck Valley Street Railway Company, a corporation doing business in said Washington county, to recover damages for personal Injuries alleged to have been sustained by said plaintiff through the negligence of the defendant company in the operation of one of its street cars.

On the 13th day of July, 1910, the plaintiff was driving a pair of horses attached to a cart carrying a load of gravel weighing from 5,000 to 5,500 pounds along a highway in the town of Westerly, known as the "Westerly Road," between Ninigret avenue and Wauwinnet avenue. At a place in said highway on the part of the road between the railroad track and the sidewalk he met an automobile. The automobile turned to the right and ran upon the sidewalk, but was not able to continue until it had passed the cart, because of a pole standing in the sidewalk. About 5 or 6 feet from this pole the automobile stopped. The plaintiff drove to the right so far that his off wheels rubbed against the rail, and in this position the nigh wheels of his cart just cleared the automobile. While the plaintiff's team was in this position he heard the car approaching from behind. He looked back, and, as he testified, saw it 200 feet away. He could not turn from the track in the position he then occupied by reason of the presence of the automobile. He urged his horses, and made an effort to pass the automobile. He had partly passed the automobile, and was turning away from the railroad track, when the car came up behind him, and the running board of the car, after clearing the plaintiff's rear wheel, struck his forward wheel, causing a jolt which threw the plaintiff off the cart to the ground, and in that position the wheel of the cart crushed and injured him.

The case was tried in the superior court in Washington county before Mr. Justice Brown and a jury on the 1st and 2d days of December, 1910, and resulted in a verdict for the plaintiff for $15,000. The defendant moved for a new trial on the grounds that the verdict was against the evidence and the weight thereof; that it was, on the evidence in the case, contrary to the law as given to the jury by the court; that the damages awarded were excessive; that counsel for the plaintiff, in arguing said case to the jury on the subject of damages, stated to the jury, "They say country juries give small damages;" that since the trial the defendant has discovered evidence of facts of which the defendant had no knowledge prior to said trial, and at said trial could not have discovered by the exercise of reasonable diligence.

The motion for a new trial was heard January 11, 1911, and on February 10, 1911 was denied. February 17, 1911, the defendant excepted to the decision denying its motion for a new trial, and gave notice of its intention to prosecute a bill of exceptions upon all its exceptions in the case. Within the time and in accordance with the procedure required by statute, the defendant presented its bill of exceptions and the transcript of the testimony, which were severally allowed by the justice presiding. The case is now before this court on said bill of exceptions.

The exceptions are as follows: The first exception is to the admission by the court of questions Nos. 59 and 60 and the answers thereto of the witness George B. Capron, found on page 44 of the transcript of testimony. The second exception is to the admission by the court of question No. 61 and the answers thereto of the witness George B. Capron, all as found on pages 44, 45, and 46 of the transcript of testimony. We will consider these exceptions together. On page 39 of the transcript objection was made to the following question: "42 Q. While Mr. Champlin was there, or while they were picking him up, did you hear anything said by the motorman?" The witness was then questioned by counsel for both plaintiff and defendant as to how long after the accident the statement inquired about was made. The witness stated that after seeing the collision he started immediately, and got to the place in possibly three minutes, and that he had been there "probably two or three, three or four, minutes" when he heard the statement. On page 43 the court overruled the objection, and defendant's counsel excepted. "59 Q. (by Mr. Crafts). Well, what was the whole conversation with the motorman? A. Well, the motorman stood in the front of the car putting on his gloves, as I remember it, and there was some gentleman at the side of me, and he looked up at the car and he says— The Court: No, the question is what the motorman said, not what the other man said. 60 Q. State what the motorman said. A. The motorman said, There hasn't any one denied it.'" Questions and answers 59 and 60 are the ones covered by the first exception. We think these questions were properly admitted. On page 44: "61 Q. What did the man say? A. The man said, The railroad company was to blame.' Mr. Perkins: Now, I object to any statement by a bystander. The Court: Well, the statement by a bystander is necessary to understand the motorman's statement. (Exception taken by Mr. Perkins.) Witness: This gentleman stood in front of the car with me, and he said, 'The railroad company is to blame for this,' and the motorman said, There has no one denied it, has there?'" Mr. Perkins moved to strike out the answer. After further discussion, on page 46, Mr. Perkins said: "Well, I think I will withdraw my motion, because it applies only to the part of the—possibly the motion would apply only to that part The Court: You withdraw the motion, 1 understand? Mr. Perkins: I withdraw the motion to strike it out, and stand on the objection originally to the question. The Court: Very well, we will go on." The exception on page 44, therefore, was to the question, "What did the man say?" The court had ruled that the statement of the bystander was necessary to understand the motorman's statement, and the exception was to this ruling. We cannot see how the court could have ruled differently, as the statement of the motorman was entirely unintelligible by itself. The question, therefore, was proper.

Questions 59 and 60 and 61 were all inquiries permissible for bringing out the res gestæ. The question, as we have said, was proper, and we think counsel should have insisted upon his motion to strike out, if he did not want the answer to stand. Was the answer such that the court should have ordered it stricken out, regardless of the withdrawal of the motion to strike out? The answer could injure the defendant only when taken in connection with the statement of the motorman, viz., "There has no one denied It, has there?" Possibly this might be regarded as a statement by the motorman that he was to blame for the accident. As a participant in the transaction, would not his statement to that effect, made six or seven minutes after the accident, when the car was at a standstill by reason of the accident, and the plaintiff was just being picked up, or had just been picked up, be admissible as a part of the res gestæ? We think it would. In State v. Murphy, 16 R. I. 530, 17 Atl. 998, Stiness, J., in considering the question of the admissibility of statements made aftter the happening of the transaction, said: "The principle upon which the admission of such evidence rests is that declarations after an act may, nevertheless, spring so naturally and involuntarily from the thing done as to reveal its character, and thus belong to it and be a part of it; also to rebut all inference of calculation in making the declarations, and thus to entitle them to credit and weight as evidence of the transaction itself." In that case the statements admitted in evidence as part of the res gestæ were made about 10 or 15 minutes after the deadly assault in question, and by the person who was assaulted. In Graves v. People, 18 Colo. 170, 32 Pac. 63, cited in Havens v. R, I. Suburban Ry. Co., 26 R. I. 48, 58 Atl. 247, 3 Ann. Cas. 617, Hayt, C. J., adopted Mr. Wharton's definition of res gestæ, as follows: "Res gestæ are events speaking for themselves, through the instinctive words and acts of participants, not the words and acts of participants when narrating the events. What is done or said by participants, under the immediate spur of a transaction, becomes thus part of the transaction, because it is then the transaction that thus speaks. In such cases it is not necessary to examine as witnesses the persons who, as participators in the transaction, thus instinctively spoke or acted. What they did or said is not hearsay. It is part of the transaction itself."

The third exception is to the admission by the court of question No. 19 and the answer thereto of the witness Justice C. Haven, as found on page 56 of the transcript of testimony: "19 Q. Was there room for two teams to meet and pass7 A. No, sir; not without going on the sidewalk." The exception was taken after the question had been answered. We think the admission was correct, for the reason given by the court— "that the witness might not know the exact measurement, and yet have sufficient information, from seeing teams pass there, or attempting to pass, to know there was not room enough for two teams to pass between the car and the sidewalk." The witness had testified that the traveled road for carts and teams between the rail and the sidewalk was narrow. He could answer the...