Gardner v. Detroit St. Ry. Co.
| Decision Date | 27 February 1894 |
| Citation | 58 N.W. 49,99 Mich. 182 |
| Court | Michigan Supreme Court |
| Parties | GARDNER v. DETROIT ST. RY. CO. |
Error to circuit court, Wayne county; George Gartner, Judge.
Action by Edgar B. Gardner against the Detroit Street Railway Company for damages for personal injuries. Judgment for plaintiff. Defendant brings error. Reversed.
Sidney T. Miller, (John C. Donnelly, of counsel,) for appellant.
Edward W. Pendleton, for appellee.
Plaintiff took passage on one of defendant's open cars on Cass and Third Avenue lines, to go to the corner of Fourth avenue and Holden road, a distance of about one and a half miles. He sat near the rear end of the car. The conductor was notified to stop at that point by another passenger, and the conductor repeated the instructions to the driver to stop there. The car was behind time, and was driven rapidly between the switches. At defendant's barns the conductor left the car, which went forward to its destination under the control of the driver. Arriving at the corner of Fourth avenue and Holden road, two ladies arose to leave the car, and the plaintiff arose also, being seen by the driver, it is claimed, and waited for them to alight after the car stopped when he stepped to the footboard and attempted to get off, when the car started up and threw him to the ground, causing severe, and, as claimed, permanent, injuries. For these injuries, which it is claimed were caused by the carelessness of defendant's agent, this action is brought. On the trial before a jury, plaintiff had verdict and judgment.
The duty of the defendant and its negligence, as stated in the declaration, is that it was the duty of the defendant to exercise due care for the safety of the plaintiff, and to provide a safe car and competent and trustworthy agents, drivers, and conductors for the safe transportation of the plaintiff, and for his safety while leaving said car; that it was the duty of said conductor and driver to remain on said car from the starting point to the final stopping place, but that, contrary to this duty, the conductor negligently abandoned the car on which plaintiff was riding at its barns, and before reaching its destination or the place where plaintiff was to alight; that said car stopped to allow plaintiff to alight, and while in the act of so doing, and while exercising due care, the driver of the car recklessly and negligently caused or allowed the horses attached to the car to start, and thereby the said car was suddenly propelled forward, by means whereof the plaintiff was thrown violently from the car upon the street, etc. It is further alleged, in the second count, that the driver, in the absence of the conductor, who had willfully abandoned said car, recklessly and negligently caused or allowed the horses attached to the car to be started forward, and the said car to be suddenly propelled forward, thereby causing the plaintiff to be thrown from the car, etc. On the trial testimony was given by plaintiff's witnesses showing that the car was driven rapidly between switches; and the court permitted one of these witnesses, under objection, to answer the following question: "What did you hear the driver say as to being behind time?" Answer: Counsel for plaintiff claims that this evidence was admissible, and was a significant circumstance indicating the mental attitude of the driver, connected with, and tending to explain, his negligence, and that it was part of the res gestae. In support of this claim, counsel cites Matteson v. Railroad Co., 62 Barb. 364; Railway Co. v. Compton, 75 Tex. 667; 13 S.W. 667. In the first case the action was brought to recover damages for injuries occasioned by defendant's car, upon which plaintiff was a passenger running off the track where ties were being placed. On the trial the declarations were given in evidence of one who was in charge of a gang of men relaying ties for defendant, "that there was sufficient time to relay them before the arrival of the train." The court held this admissible on the ground that the declarations of an agent, made in reference to the subject-matter of the agency, while engaged in the business, bound the principal. In the Texas case the minor son of plaintiff was a fireman sent out on a water train on defendant's road. It collided with a passenger train, and the son was killed. Defendant contended that the deceased and the engineer of his train were themselves guilty of negligence, and sought to show a conversation between the engineer of the water train and the operator at one of the stations, in which the engineer was told by the operator that he ought to meet the passenger train at Alvin. The engineer responded: (a station south of Alvin,)-to which the operator said: "No." The accident by which the son was killed occurred south of Alvin. The evidence was excluded. On appeal it was held that it was admissible, as it tended to prove that an order was given to the person in charge of the train to stop at Alvin, and to await the passage of the north-bound passenger train, and that his desire was to hasten forward, and to meet the other train at Hitchcock; therefore, its tendency was to show that the accident was the result of the negligence of the engineer, and hence the declarations were not hearsay. In the present case the hurried driving of the car between switches is not claimed to have caused the injury, and it is not claimed in the declaration that the act of the driver in starting the car was willful, or that the fact that the driver was late caused it. This conversation was no part of the res gestae, and had no legitimate tendency to prove that the driver carelessly and negligently started his horses forward, causing the plaintiff to be thrown from the car. The rules exclude all evidence of collateral facts, or those which are incapable of affording any reasonable presumption of inference as to the principal fact or matter in dispute. 1 Greenl. Ev. � 52. This testimony might tend to prejudice the driver of the car with the jury. But the jury would have no right to say from it that the driver was in a hurry; h...
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