Gotwald v. St. Louis Transit Co.

• Decision Date: 17 November 1903
• Parties: GOTWALD, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Court of Appeals

77 S.W. 125

102 Mo.App. 492

GOTWALD, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

November 17, 1903

Appeal from St. Louis City Circuit Court.--Hon. Franklin Ferriss Judge.

REVERSED AND REMANDED.

Cause reversed and remanded.

Boyle Priest & Lehmann and Geo. W. Easley for appellant.

(1) The court erred in permitting the witness Brizzi to testify as to what the conductor said when asked to stop the car after the occurrence of the accident. Such declarations are neither admissible as admissions nor as part of the res gestae. Barker v. Railroad, 126 Mo. 143; McDermott v Railroad, 73 Mo. 516; McDermott v. Railroad, 87 Mo. 285; Rogers v. McCune, 19 Mo. 558; Aldridge v. Furnace Co., 78 Mo. 563; Bevis v. Railroad, 26 Mo.App. 22; Lindauer v. Meyberg, 27 Mo.App. 181; Corbett v. Railroad, 26 Mo.App. 64; Barker v Railroad, 126 Mo. 143. (2) The court erred in giving instruction number 3 for plaintiff. Instructions must be based on the pleadings, and cannot change the issue raised in the pleadings. Chitty v. Railroad, 148 Mo. 74; Glass v. Gelvin, 80 Mo. 297; Bank v. Murdoch, 62 Mo. 70; Moffat v. Conklin, 35 Mo. 453; Wade v. Hardy, 75 Mo. 394; Camp v. Hulan, 43 Mo. 591; Bank v. Armstrong, 62 Mo. 65; Melvin v. Railroad, 89 Mo. 106; Noll v. Railroad, 97 Mo. 68; Bender v. Dungan, 99 Mo. 126; Sparks v. Dispatch Co., 104 Mo. 531; Hasset v. Rust, 64 Mo. 325; Kenney v. Railroad, 70 Mo. 252; Railroad v. Cleary, 77 Mo. 634; Woods v. Campbell, 110 Mo. 572; Currier v. Lowe, 32 Mo. 203; Waldhier v. Railroad, 71 Mo. 514; Yarnell v. Railroad, 113 Mo. 570; Price v. Railroad, 72 Mo. 414; Milling Co. v. Transit Co., 122 Mo. 277; Mason v. Railroad, 75 Mo.App. 10; State ex rel. v. Sitlington, 51 Mo.App. 252; Wright v. Fonda, 44 Mo.App. 634; George v. Railroad, 40 Mo.App. 434; Fairgrieve v. Moberly, 29 Mo.App. 142; Rothschild v. Frensdorf, 21 Mo.App. 318; Nelson v. Mitchell, 38 Mo.App. 321; Bloom v. Pope, 36 Mo.App. 410; Sedalia Gas Co. v. Mercer, 48 Mo.App. 644; Scott v. Allenbaugh, 50 Mo.App. 130.

James M. Rollins and I. A. Rollins for respondent.

(1) The defendant having failed to except to the action of the court in admitting the evidence complained of, can not avail itself of its objections thereto on this appeal. Roe v. Bank, 167 Mo. 406; Watson v. Rose, 46 Mo.App. 546. (2) If it was error to admit the conductor's declaration as testified to by Brizzi, such error was cured by defendant when it introduced in evidence the declaration of the conductor as testified to by Mrs. McAllister. State v. Dittmer, 124 Mo. 426. (3) Instruction number 3 for plaintiffs was based on the pleadings. Galbreath v. Comes, 91 Mo.App. 512; Perkins v. Railroad, 55 Mo. 201; 2 Addison on Torts (2 Ed.), p. 8; Krueger v. Railroad, 81 Mo.App. 358.

REYBURN, J. Bland, P. J., and Goode, J., concur.

OPINION

REYBURN, J.

Action for personal injuries alleged to have been sustained May 10, 1902, about 10:30 p. m., by the forcible ejection of plaintiff from a car of defendant by its conductor. The petition, after charging that plaintiff took passage on a car of the Spring avenue division, proceeding north on Thirteenth across Wash street, and that the car being crowded he was compelled to stand on the rear platform, thus sets forth his complaint:

"Plaintiff further states that he was carrying a lot of packages in his arms, and that, upon approaching Fourteenth and Biddle streets, said company's car was moving rapidly, and there being a curve at this point, it became necessary for plaintiff to hold on to the car with one hand while holding the packages with the other, to prevent being thrown from the car by the swinging of said car around said curve. Plaintiff states that upon approaching Fourteenth and Biddle streets and said curve, said company's conductor demanded plaintiff's fare, and plaintiff requested said conductor to wait until they had passed this dangerous point. After passing this curve said plaintiff arranged his packages and proceeded to place his hand in his left pants pocket for his money to pay his fare, and before he could produce same, said company's conductor caught said plaintiff by the shoulders and neck from the rear, and threw him forcibly and bodily from the car while said car was in motion, plaintiff striking the hard street, and injuring him as follows."

The character and severity of the injuries are then detailed and damages asked.

Additional to a general denial, the defendant interposed a plea that plaintiff refused to pay his fare upon demand therefor, and that defendant's conductor put plaintiff off because of his failure and refusal to pay his fare, using no unnecessary force for that purpose.

From a verdict and judgment thereon for plaintiff, defendant has appealed.

1. In the examination in chief of a witness on behalf of plaintiff, the following was elicited and is quoted verbatim:

"Q. Well, at the time up near the corner of Fourteenth and Biddle streets did you notice what took place there, if anything? A. I was standing inside of the street car. At the time I recollect there was a great commotion. Many people hollered, 'Stop the car!' 'Stop the car!' So I turned around, and I saw a man in the street. Then again, I heard some fellow say down there; he says--

"By Mr. Hocker (counsel for the defendant, interrupting): Well, I object to that. This is afterwards.

"Q. Did you hear the conductor say anything?

"By Mr. Hocker (counsel for defendant): I object to that.

"By the Court: He may answer.

"A. He said, 'I am not going to stop the line for a man.'

"By Mr. Hocker (counsel for defendant, interrupting): Just one moment--did I get your name right, Brizzi? A. Yes, sir.

"By Mr. Hocker (counsel for defendant): When was that remark made? A. That was a remark when a man near me was very agitated, and wanted the conductor to stop the car.

"By Mr. Hocker (counsel for the defendant): When was the conductor's remark made? A. He answered.

"By Mr. Hocker (counsel for the defendant): It was after the occurrence? A. After the occurrence.

"By Mr. Hocker (counsel for defendant): I object to that as incompetent, and not part of the res gestae.

"By the Court: He may answer.

"To which ruling of the court, defendant, by its counsel, duly excepted.

"Q. Did the conductor stop the car?

"By Mr. Hocker (counsel for the defendant: We make the same objections.

"Which were overruled by the court, and the witness answered.

"A. Not as I remember.

"To which ruling the defendant saved exceptions."

Respondent's insistence, that the appellant failed to properly object and preserve its exceptions to the admission of this testimony does not appear sustained by the record, and we will therefore proceed to consider its admissibility, which is questioned by appellant either as an admission or as part of the res gestae. A well-considered and leading case, involving the question of what statements succeeding an event constitute res gestae, is that of Leahy v. Railway, 97 Mo. 165, wherein Judge BLACK, after consideration and analysis of many of the leading text-writers, as well as prominent decisions in this State and of other states, and of Federal courts, deduces the conclusions that the declaration, to be part of the res gestae, need not be coincident, in point of time, with the main fact to be proved, but that it is sufficient if the two are so nearly connected that the declaration can, in the ordinary course of affairs, be said to be the spontaneous exclamation of the real cause; that the declaration is then a verbal act, and may well be said to be a part of the main fact or transaction; or, if the subsequent declaration and the main fact at issue taken together form a continuous transaction, then the declaration should be received; but that mere narratives of past events, disconnected from the main fact and already transpired, are inadmissible. See, also, Barker v. Railway, 126 Mo. 143. Counsel for respondent urge that in no event could this testimony have been...