Denver City Tramway Co. v. Brumley

• Decision Date: 03 July 1911
• Citation: 116 P. 1051,51 Colo. 251
• Parties: DENVER CITY TRAMWAY CO. v. BRUMLEY.
• Court: Colorado Supreme Court

116 P. 1051

51 Colo. 251

DENVER CITY TRAMWAY CO. v. BRUMLEY.

Supreme Court of Colorado

July 3, 1911

Appeal from District Court, City and County of Denver; Samuel L Carpenter, Judge.

Action by Mahala A. Brumley against the Denver City Tramway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Gerald Hughes and Howard S. Robertson, for appellant.

Thomas B. Stuart and Charles A. Murray, for appellee.

BAILEY J.

Plaintiff's complaint alleged in substance that, while attempting to alight from one of defendant's cars, at the intersection of Fifteenth street and Cleveland place, after the car had been brought to a stop, but before she had an opportunity to completely get off, the car was negligently and carelessly put in motion and moved forward, and by reason thereof she was thrown to the pavement, and the bones of her left arm wrist and hand fractured and broken in two or more places her left shoulder sprained, bruised and disabled, her back and hips bruised and wounded and her nervous system greatly shocked. To reimburse her for the damage thus sustained she prayed judgment in the sum of $10,000.

The defendant for answer denied these allegations, and set up the defense of contributory negligence, alleging that the plaintiff attempted to alight from the car before the same came to a stop, and before it was in the act of even slowing up, and also that in alighting from the car she stepped off with her face to the rear. The plaintiff had judgment for $1,520, and the defendant brings the case here to review that judgment on appeal.

The first error assigned goes to the admission by the court, as is alleged, of improper evidence on behalf of plaintiff and the rejection of proper evidence offered by defendant.

The main contention under this head is that the court permitted the plaintiff, in order to sustain the allegations of her complaint, to testify as follows:

'Q. Well, now, what if anything further was said by the conductor in that immediate connection?

'A. When he got me on my feet and he was still holding onto me, I said, 'Oh, conductor, why did you throw me?' and he let go of me then and turned and said to some of these men standing there and he said, 'I have been on the road so many years and this is my third accident' and he said, 'Two of them have occurred since noon today' but he says, 'This one wasn't my fault, the motorman started the car without a signal.'

'Q. State how soon after you were thrown on the pavement did this conductor make this remark which you have last stated?

'A. Well, it was within the time I have been telling you; I think it couldn't have been over two minutes after I was thrown from the car when he said it.'

Upon motion, all of the answer having reference to other accidents and to the experience of the conductor was stricken by the court and withdrawn from the jury. That portion of the answer wherein the conductor said: 'This one wasn't my fault, the motorman started the car without a signal,' was permitted to go to the jury as part of the res gestae. It is earnestly contended that this evidence is incompetent, and that it was reversible error to permit it to go to and be considered by the jury upon any theory whatever. Also answers given to questions propounded to Dr. J. B. Kinley, one of plaintiff's witnesses, were objected and excepted to, as follows:

'Q. At that time (referring to the time the conductor was lifting the plaintiff to her feet), Dector, did you hear the conductor say anything in regard to the accident?

'A. Yes, sir.

'Q. You may state what he said.

'A. He said, 'Did you notice that the car started before I rang?''

Res gestae may be broadly defined as matter incidental to a main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of it, and without a knowledge of which the main fact might not be properly understood. They are the events themselves speaking through the instinctive words and acts of participants; the circumstances, facts and declarations which grow out of the main fact, are contemporaneous with it and serve to illustrate its character.

The general rule, upon the question of the admissibility of testimony as part of the res gestae, of such declarations or statements as are here objected to, is well stated in Louisville, etc., Ry. Co. v. Buck, 116 Ind. 566, 19 N.E. 453, 2 L.R.A. 520, 9 Am.St.Rep. 883, as follows:

'It is not always easy to determine when declarations having relation to an act or transaction should be received as part of the res gestae, and much difficulty has been experienced in the effort to formulate general rules applicable to the subject. This much may, however, be safely said, that declarations which were the natural emanations or outgrowths of the act or occurrence in litigation, although not precisely concurrent in point of time, if they were yet voluntarily and spontaneously made so nearly contemporaneous as to be in the presence of the transaction which they illustrate and explain, and were made under such circumstances as necessarily to exclude the idea of design or deliberation, must, upon the clearest principles of justice, be admissible as part of the act or transaction itself.'

In Lund v. Tyngsborough, 9 Cush. (Mass.) 42, speaking of statements such as are now under consideration, the court said:

'Such a declaration derives credit and importance, as forming a part of the transaction itself, and is included in the surrounding circumstances, which may always be given in evidence to the jury with the principal fact. There must be a main or principal fact or transaction, and only such declarations are admissible as grow out of the principal transaction, illustrate its character, are contemporary with it, and derive some degree of credit from it.'

In Rockwell v. Taylor, 41 Conn. 55, the rule was laid down thus:

'To make declarations admissible on this ground, they must not have been mere narratives of past occurrences, but must have been made at the time of the act done, which they are supposed to characterize, and have been well calculated to unfold the nature and quality of the acts they were intended to explain and to so harmonize with them as to constitute a single transaction.'

In Tilson v. Terwilliger, 56 N.Y. 273, Judge Folger laid down the rule as to res gestae declarations in this manner:

'To be a part of the res gestae they must be made at the time of the act done, which they are supposed to characterize; they must be calculated to unfold the nature and quality of the facts which they are intended to explain; they must so harmonize with those facts as to form one transaction.'

In Missouri Pacific Ry. Co. v. Baier, 37 Neb. 245, 55 N.W. 916, it is said:

'The consensus of the authorities seem to be, that a declaration to be a part of the res gestae need not be coincident in point of time with the main fact proved. It is enough that the two are so clearly connected that the declaration can, in the ordinary course of affairs, be said to be a spontaneous explanation of the real cause. The declaration is then a verbal act, and may well be said to be a part of the main fact or transaction.'

New York & Colo. M. S. & Co. v. Rogers, 11 Colo. 6, 16 P. 719, 7 Am.St.Rep. 198, is a case where the declarations of the defendant's foreman, made some 30 or 60 minutes after the accident, as to the unsafe condition of a certain applicance, were held competent. The court, speaking through Mr. Justice Helm, said:

'The foreman was defendant's

...