O'Connor v. Chicago, Milwaukee & St. Paul R. Co.

• Decision Date: 13 September 1880
• Citation: 27 Minn. 166,6 N.W. 481
• Court: Minnesota Supreme Court
• Parties: O'CONNOR AND OTHERS v CHICAGO, MILWAUKEE & ST. PAUL R. CO.

27 Minn. 166

6 N.W. 481

O'CONNOR AND OTHERSvCHICAGO, MILWAUKEE & ST. PAUL R. CO.

Supreme Court of Minnesota.

Filed September 13, 1880.

Appeal from order of district court, Ramsey county.

Davis, O'Brien & Wilson, for respondent.

Bigelow, Flandrau & Clark, for appellant.

GILFILLAN, C. J.

Under the rule laid down by this court in Locke v. First Div. St. P. & P. R. Co. 15 Minn. 350, and approved and followed in Witherell v. M. & St. P. R. Co. 24 Minn. 410, as to the liability of railroad companies for injuries done to animals trespassing upon their tracks, there was sufficient evidence to sustain the verdict in this case. If the jury believed, as they seem to have done, the testimony of plaintiffs' witnesses as to the location of the train when those in charge appear to have discovered the horses on the track, as to the character of the track, and the difficulty for horses to get off it when frightened; as to the probable speed of the train when it struck them, and that of witnesses for defendant as to the distance within which that train could have been stopped,-they might very well find that it was great negligence on the part of those in charge of the train that they did not sooner check its speed, so as to have it entirely under control before it reached the point where the accident happened.

The exception that the court did on its charge misstate the evidence of Niccault seems to have arisen from a misunderstanding of what the court said. In that part of its charge it was not stating what Niccault swore to, but only what plaintiff claimed his evidence to be. If the jury might be misled by this statement of the court, its attention should have been specially called to it, so that it might be at once corrected. We cannot see how the admission of what the conductor said to the brakeman could have had any influence with the jury. It is, therefore, immaterial whether it was admissible or not. What the engineer said to the conductor was calculated to affect the finding. Its admission raises the only serious question in the case, one of great difficulty. It appears to have been said immediately after the horses were struck and the train stopped, and while those in charge were examining to ascertain what mischief had been done, and was in direct connection, in time, with what had just occurred, and related to what they were then at.

To make declarations of an agent evidence against his principal they must not only have been made while he was engaged in the business of the principal, but they must be a part of the transaction, out of which the controversy arises. It is not enough that they refer to or narrate the transaction after it is past; they must be so connected in time and circumstances with the principal fact as to be a part of it. When declarations of an agent or of a party himself are so closely connected with the principal fact as to be a part of the res gestæ, is often a very nice question to determine. There are on the point many decisions which appear difficult to reconcile with each other. Reference to a few of them will be sufficient.

Declarations of the captain of a steamer as to the cause of an accident, made two and a half days after the accident, but on the same voyage, were excluded. Pack Co. v. Clough, 20 Wall. 528.

Where the accident happened while a passager was getting on a car, the declaration of a brakeman made a short time after, that the train should have stopped longer, was held inadmissible, because not a statement explanatory of anything in which he was then engaged, but relating to a past transaction. M. C. R. Co. v. Coleman, 28 Mich. 440.

Statements of the locomotive engineer, made a few days after an accident, as to its cause, held inadmissible. Robinson v. F. & W. R. Co. 7 Gray, 92. Statement of a party injured by a railroad accident, relating how it occurred, immediately after the accident, held no part of the res gestæ. C., C. & C. R. Co. v. Mara, 26 Ohio St. 185. Declarations of the locomotive engineer as to a railroad accident, made some time after and distinct from it, held inadmissible. M. C. R. Co. v. Gougar, 55 Ill. 503. Subsequent declarations of a brakeman, as to how a car was burned, held inadmissible. M. C. R. Co. v. Carrow, 73 Ill. 348. In a case of collision between two trains the subsequent statement of a flagman, how far he had gone back to flag the coming train, held inadmissible. P. R. Co. v. Books, 57 Pa. St. 339. The statement of an omnibus conductor immediately after an accident, as to the conduct and character of the driver, held no part of res gestæ. Agassiz v. Lon. Tram Comp., Fisher's Ann. Dig. 1873, p. 246.

In Luby v. H. R. R. Co. 17 N.Y. 131, the plaintiff was run against and injured by a car drawn by horses. The car was stopped, and the driver arrested by a policeman. In the trial the policeman was allowed to testify that, upon arresting the driver as he was getting off the car and out of the crowd surrounding it, he asked him why he did not stop the car, to which the driver replied the break was out of order. This was held error. The court said: “The declaration was no part of the driver's act for which the defendants were sued. It was not made at the time of the act, so as to give it quality and character. The alleged wrong was complete, and the driver, when he made the statement, was only endeavoring to account for what he had done.” It may be remarked in regard to this case, and also several others of the cases cited, that, while the statement appears to have been closely connected in time with the principal fact, it was made to a stranger to the principal's business, and in narration of what had just occurred. On the other hand, the declaration of a person stabbed as to who stabbed him, made within 20 seconds after it, was held a part of the res gestæ, and admitted on the ground that it was not a narrative statement of a past transaction, but an exclamation or statement contemporaneous with the main transaction, forming a natural and material part of it....