Davis v. Boston & M. R. R.

• Decision Date: 05 April 1910
• Citation: 75 N.H. 467,76 A. 170
• Parties: DAVIS v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

76 A. 170

75 N.H. 467

DAVIS

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Carroll.

April 5, 1910.

Transferred from Superior Court, Carroll County; Chamberlin, Judge.

Action by Frank W. Davis, as administrator, against the Boston & Maine Railroad, to recover for negligently causing the death of plaintiff's intestate. There was a verdict and judgment for defendant, and the case was transferred to the Supreme Court on plaintiff's exceptions to the admission and exclusion of evidence, and to the remarks of defendant's counsel interjected during the progress of the trial. Exceptions overruled.

Walter D. H. Hill and Niles & Upton, for plaintiff.

Leslie P. Snow, for defendant.

YOUNG, J. 1. The plaintiff's intestate got drunk, drove his horse upon a grade crossing, and was killed by the defendant's engine. The engineer saw him before the accident, but the speed of the train was not materially checked until after he was killed. One issue submitted to the jury was why the speed was not checked; the plaintiff contending that it was due to the failure of the engineer to apply the brakes, and the defendant to the failure of the brakes to hold the train. The train did not stop as soon after the accident as the express messenger expected it to, and he exclaimed, "Why don't they put on the brakes?" The plaintiff offered this exclamation in evidence, and the court excluded it, subject to exception.

If there is no view of the law in which the exclamation was admissible to prove that the brakes were not applied until after the accident—the purpose for which it was offered—it can serve no useful purpose to consider why it was excluded. The plaintiff concedes that it was hearsay for the purpose for which he desired to use it, but contends that it was admissible as a part of the res gestae (Murray v. Railroad, 72 N. H. 32, 34, 54 Atl. 289, 61 L. R. A. 495, 101 Am. St. Rep. 660), or as a "spontaneous exclamation" (3 Wig. Ev. § 1745). To bring it within this exception to the rule which excludes hearsay, there must be evidence from which it can be found that (1) the accident—an unusual and exciting occurrence —produced it (Murray v. Railroad, 72 N. H. 32, 54 Atl. 289, 61 L. R. A. 495, 101 Am. St. Rep. 660; Robinson v. Stahl, 74 N. H. 310, 67 Atl. 577); and (2) when the messenger made it be was in a position to know that the brakes had not been applied—the truth in respect to its subject-matter (3 Wig. Ev. § 1751). If, therefore, there is no evidence from which it can be found that the messenger, when he made the exclamation, was in a position to know, not whether the speed of the train had been materially checked, but whether the brakes had been applied, it does not come within this exception. The only evidence relevant to that issue is the messenger's testimony and that of an expert called by the plaintiff.

The messenger did not say that he knew the brakes had not been applied, or that he could tell when an emergency application was made, but that he could tell when such an application checked the speed of the train suddenly enough to throw him forward; and, when asked if such an application was not always noticeable to one in his position, he replied in the negative. If the rails were wet, as they were on the day of the accident, and the brakes locked the drive-wheels, the engine might slide and the application not be noticeable to one in the front end of the train; and that the engine might slide under the...