Gary Rys. v. Cline

• Decision Date: 30 March 1951
• Docket Number: No. 18112,18112
• Citation: 121 Ind.App. 449,97 N.E.2d 628
• Parties: GARY RYS., Inc. v. CLINE et al.
• Court: Indiana Appellate Court

Page 628

97 N.E.2d 628

121 Ind.App. 449

GARY RYS., Inc. v. CLINE et al.

No. 18112.

Appellate Court of Indiana, in Banc.

March 30, 1951.

Hodges, Ridgely & Davis, Gary, George F. Sammons, Kentland, for appellant.

Fagan & Daugherty, William J. Regan, and Justin Waitkus, all of Gary, Ralph Bower, Kentland, for appellees.

MARTIN, Judge.

This is an appeal from a judgment in favor of the appellee, Harry O. Cline, in an action for damages. The appeal as to Irving J. Matthews has been dismissed in this court. Gary Rys. v. Cline, Ind.App., 94 N.E.2d 759.

Donald Cline, son of the appellee, died of injuries received in a collision between a bus of the appellant and a truck in which the appellee's deceased son was riding, said death resulting from the alleged negligence of the appellant.

The cause was tried by a jury on the issues formed by the appellee's second paragraph of complaint and appellant's answer. The jury returned a verdict in favor of the appellee and against the appellant, awarding damages in the amount of $10,000 to the appellee.

The error assigned for reversal is that the court erred in overruling appellant's motion for a new trial.

The grounds set forth in the motion for a new trial are:

(1) The damages assessed by the jury are excessive.

(2) The verdict of the jury is not sustained by sufficient evidence and is contrary to law.

(3) The following separate and several errors of law occurring at the trial and objected to and excepted to by the defendant, Gary Railways, Inc.

(a) Appellant contends that the court erred in permitting the witness, John Kravetz, to answer questions over the objections of the appellant.

(b) The court erred in overruling appellant's motion to strike out certain testimony of the witness Kravetz.

(c) The court erred in permitting the witness, Irving J. Matthews, to answer certain questions.

(4) The court erred in overruling the motion of defendant Gary Railways, Inc., to strike the answers of the witness John Kravetz to questions put on direct examination by Mr. Charles Daugherty, attorney for the plaintiff and Mr. Waitkus, attorney for the defendant, Irving J. Matthews. Said questions, objections, rulings and answers are all set forth in Appendix 'A' which is attached hereto and made a part hereof in its entirety by reference and which said motion and ruling on said motion are set forth in Appendix 'B' which is attached hereto and which is made a part hereof in its entirety by by reference.

The court will consider the questions in the order raised in appellant's brief and will consider together specifications 3(a), (b), and 4 of the motion for a new trial, appellant's testimony regarding the introduction of evidence and the overruling of appellant's motion to strike out questions and answers, all pertaining to evidence given by the witness Kravetz as to statements made by appellant's bus driver agent, Papke.

The arguments regarding the admissibility of the bus driver's statements were based on appellant's objections that such testimony would be hearsay and not within any variation from the hearsay rule. The appellant contends that the statements of the bus driver are not admissible, either as a part of the res gestae or as an admission or statement by an agent which would be binding upon his principal.

The witness, John Kravetz, testified in substance that after the accident there was no one in the bus except the bus driver; that the bus driver did get out of the bus in a minute or two and that he seemed dazed, that he walked around rubbing his head; that they asked him questions but he did not answer for about five or six minutes. Following this evidence the following question was asked and answer given:

'Q. All right, now, I will repeat that question. What was that statement? A. He just said he didn't see a thing, the first thing he remembered was the impact.

'Mr. Waitkus: Speak up. A. All he said was he didn't remember nothing, he didn't know where the truck come from. The first thing he remembered was when he crashed into the truck, he didn't know where the truck come from.'

This evidence shows that the bus driver was evidently dazed and suffering from shock and unable to talk at first. The above statements were the first statements that he had made after the impact.

The foregoing statements by the bus driver were clearly relevant and material. They had a direct and substantial bearing upon the negligence of the appellant's employee and agent, Papke. They indicated that he was not keeping a proper lookout. The declarations of Papke were voluntary and spontaneous and were the first statements that he apparently was able to make after the accident and at the time and place where the collision they referred to occurred, and they illustrated the event. They were made so near the time of the principal act as to preclude the idea of deliberate design, though not precisely concurrent in point of time therewith, and are regarded as contemporaneous and admissible.

In the case of Ohio & M. R. Co. v. Stein, 133 Ind. 243, 31 N.E. 180, 183, 32 N.E. 831, 19 L.R.A. 733, the court said:

'This conclusion we regard as involved in the principle thus stated in the case of [the Louisville, N. A. & C.] Railroad Co. v. Buck [116 Ind. 566, 19 N.E. 453, 2 L.R.A. 520]:

"It is not always easy to determine when declarations having reference to any 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 are 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 closest principles of justice, be admissible as part...