Citizens' St. R. Co. v. Howard

• Decision Date: 18 May 1899
• Parties: CITIZENS' ST. R. CO. v. HOWARD.
• Court: Tennessee Supreme Court

52 S.W. 864

102 Tenn. 474

CITIZENS' ST. R. CO. v. HOWARD.

Supreme Court of Tennessee.

May 18, 1899

Error to circuit court, Shelby county; L. H. Estes, Judge.

Action by W. E. Howard against the Citizens' Street-Railroad Company. There was judgment for plaintiff, and defendant brings error. Reversed.

Turley & Wright, for plaintiff in error.

J. M Greer, for defendant in error.

McALISTER J.

Howard commenced this suit in the circuit court of Shelby county against defendant company to recover damages for personal injuries. The case has been tried several times. The first trial resulted in a verdict for the plaintiff for $1,000. The second ended in a mistrial. The third and last resulted in a verdict and judgment against the defendant for $3,250. A new trial having been refused, the company appealed, and has assigned errors.

The plaintiff resided in the state of Mississippi, and at the time of the accident had stopped over in the city of Memphis while en route to visit his parents. That night, between 8 and 9 o'clock, plaintiff, accompanied by a friend (one Elliott), started to visit some ladies who lived on Marly avenue, in the suburbs of Memphis. Plaintiff admits taking several glasses of beer prior to his departure, but claims he was not intoxicated. He and his friend boarded a Johnson avenue car, operated by defendant company, and when Marly avenue was reached they separated, Howard remaining on the south side of the street-car track, while Elliott went off to look for the home they wished to visit. Plaintiff, after waiting some time for Elliott to return, started north on Marly avenue in search of the house. Plaintiff crossed the track going north at the intersecting street, and, after an unsuccessful search for the house, returned south again; and while trying to cross the track of defendant company he was struck by a car running west, and very severely injured. There is evidence tending to show that the railroad track at this point is laid out in a straight line for 900 feet east of Marly avenue, and that a lighted car can be easily seen that distance. This fact is admitted by plaintiff, and is undisputed. On the first trial the plaintiff testified that when he retraced his steps failing to find his friend, and walked eight or ten steps on the track, he stopped to look at a house facing the old Raleigh road, and that just as he stopped a car came up from his side and rear, striking him and inflicting the personal injuries for which he sues. He further testified on that trial that he could have seen the car approaching for a distance of 900 feet, and could have heard it, but as a matter of fact he neither saw nor heard a car. On that trial the plaintiff further testified that just as he stepped onto the track from the north, towards the south, he was struck by the car; that he had neither looked nor listened for a car to the east or west, from which directions cars were likely to come; and that he was not thinking about a car at all. On the last trial the plaintiff testified that before attempting to cross the track he stopped and looked around, across, and in every direction, and that he did not see a street car coming.

Overruling the motion for new trial on the last verdict, the court said viz.: "This case has been tried three times. The first time there was a verdict for $1,000. The court set the verdict aside because plaintiff's own testimony showed clearly that he did not look or listen for a car. In granting the new trial the court held the failure to look or listen was such contributory negligence that it ought to defeat plaintiff's right of recovery." The court then remarked that "on this [the last] trial Howard's testimony is much more favorable to his case. He appears to be an honest man, with a purpose to tell the truth." And thereupon the motion for new trial was overruled. The question, then, upon this assignment of error, is whether there is any evidence to support the verdict. The conflict in the testimony of the plaintiff was a matter that went to his credibility as a witness, and was for the jury. This court could not adjudge his testimony, unworthy of credit, and say there was no evidence to sustain the finding of the jury. At last, it is a matter for the settlement of the jury, upon the irreconcilable statements claimed to have been made.

The second assignment is that the court erred in admitting declarations made by the motorman after the accident was over. These declarations were admitted upon the theory that they were part of the res gestæ. These declarations are proved by two witnesses who visited the scene of the accident immediately after it occurred. One of the witnesses testified that he was at his home in the neighborhood, about 240 feet away, and that his attention was first attracted by what he denominates a terrible noise, as if made by the sudden reversal of the car. He went out to his front gate, and was informed that some one had been run over. Witness immediately ran down there, and found the plaintiff under the car, the conductor and motorman trying to extricate him. Witness assisted the employés of the road, and the plaintiff was finally removed from the track. Another witness then came up and he was sent back to his home, 150 feet away, for a basin and towel. He returned, and the plaintiff was then washed. After all this had been done, which consumed probably 15 minutes, one of the witnesses asked the motorman how it occurred. The motorman replied that "he saw plaintiff, but thought he would get off the track." The question presented is whether the statements of the motorman were part of the res gestæ, or merely narrative of a past occurrence. The true rule on this subject is thus expressed by Mr. Wharton in his work on Criminal Evidence (section 262), viz.: "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 said or done by participants under the immediate spur of the transaction becomes a part of the transaction, because then it is the transaction that speaks. In such cases it is not necessary to examine as witnesses the persons who are participants in a transaction thus instinctively spoken or acted. The question is, is the evidence offered that of the event speaking through the participants, or that of the observers speaking about the event? In the first case, what was thus said can be said without calling those who said it; in the second case, they must be called. Nor are there any limits of time within which the res gestæ can arbitrarily be confined. They vary, in fact, with each particular case. A distinguishing feature of declarations of this class is that they should be the necessary incidents of the litigated act,--necessary in this sense: that they are a part of the immediate concomitants or conditions of such act, and are not produced by the calculated policy of the actors. In other words, they must stand in immediate causal relation to the act, and become part of the action immediately producing it, or which it immediately produces." Again, at section 259, vol. 1, of the same work (edition 1888), he says: "The res gestæ may therefore be defined as those circumstances which are the automatic and undesigned incidents of a particular litigated act, and which are admissible when illustrative of the act. Incidents that are immediately and unconsciously associated with the act, whether such incidents are doings or declarations, become in this way evidence of the character of the act. They are admissible, though hearsay,...