Goujlette's Adm'r v. Grand Trunk Ry. Co.

• Decision Date: 06 May 1919
• Docket Number: No. 140.,140.
• Court: Vermont Supreme Court
• Parties: GOUJLETTE'S ADM'R v. GRAND TRUNK RY. CO.

107 A. 118

GOUJLETTE'S ADM'R

v. GRAND TRUNK RY. CO.

No. 140.

Supreme Court of Vermont. Essex.

May 6, 1919.

Exceptions from Essex County Court; Leighton P. Slack, Judge.

Action under the federal Employers' Liability Act to recover damages for the benefit of intestate's next of kin by Felix Goulette's administrator against the Grand Trunk Railway Company. Verdict was directed for defendant, and plaintiff excepts. Judgment affirmed.

Clare R. Powell, of Island Pond, Edwin A. Cook, of Orleans, and Searles & Graves, of St. Johnsbury, for plaintiff.

John W. Redmond, of Newport, for defendant.

FISH, Superior Judge. The facts are these: On August 24, 1917, the decedent, a brakeman of 8 or 9 years' experience, with the other members of the crew, took a freight train from Island Pond, Vt., to Gorham, N. H., a distance of 51 miles, where the train arrived at 5 o'clock in the afternoon. About an hour later the train with the same crew started to return to Island Pond having 13 cars in the train. It reached Berlin, N. H., about 7 o'clock, where 46 cars were taken in, making a train of 59 cars in all. The decedent assisted in coupling the air hose, let off the brakes, and worked the train at Berlin when it pulled out. The cars taken in at this place were assembled on one track. The train stopped at Percy, N. H., about 9 o'clock, and at North Stratford about 11:30 o'clock. The decedent walked by the train at Berlin and later at Percy. Leaving the latter place, the train encountered a heavy grade, and, as it pulled hard, decedent went back from the engine on the ground to see if there was any trouble with the brakes. It was the duty of the decedent as the head brakeman to take the signal from the rear brakeman when the train was in the clear on taking a siding.

Among the cars taken into the train at Berlin was a Quebec Central rack ear numbered 1765. This was the twenty-sixth car from the caboose. The car immediately ahead of this was Grand Trunk car numbered 61046, and the car following it a box car. Car 1765 was a flat bottom car which had been converted into a rack car by the erection of 12 stakes 9 feet high on either side and of 5 at each end, of the same height. These stakes were 4x5 inches in size and were placed with the greater diameter extending outward from the car. They were attached on the sides to sockets in the car beam and when in place the inside of the stakes were flush with the outside of the beam. At the ends of the car the stakes were set on the crossbeam 9 inches from the edge of the beam measuring from the outside of the stakes.

The car was equipped with end and side ladders on the outside. The end ladders were located where they are always found on freight cars on the left corner as one faces the end of the car. The side ladders were on the side of the car on the same corner as the end ladders. The car had ladders on the inside which communicated with the end ladders on the outside.

At each end of the car on the outside was a grabiron 45 inches above the sill and extending across the end to within 18 inches of the corner. The sill projection of the car in front of the rack car was one foot. There was no running board over the top of oar 1765 and no boarding thereon. Crosstimbers were attached to the ends of the stakes at the top extending from side to side of the car. The sides and ends of the car were boarded up with narrow boards with spaces between. The boards were attached to the stakes on the inside. In passing over the train, one would have to use a ladder when he came to this car to reach the top of the car, then would go down the inside ladder and cross the bottom of the car diagonally, then go up the inside ladder at the opposite corner from the one he descended, and down the outside ladder opposite.

The train arrived in Island Pond Yard at 1 o'clock in the morning, August 25th. It was dark and rainy and had been so through the night. Decedent was in the line of his duty riding in the caboose. When the train reached the yard, it was his duty as head brakeman to go along the top of the train to the engine. On reaching the semaphore in the yard, he left the caboose with a lighted lantern and proceeded over the top of the train toward the engine. When last seen on the train, he was about 10 cars from the caboose. He was next seen on the ground on the south side of the track about 60 rods east of the Island Pond station, where his cries attracted the attention of the other trainmen. About half of the train had passed over his body, but he had extricated himself from between the rails when found. He held the lantern in his hand, but the globe was broken. He died from his injuries four hours afterwards. Pieces of glass were soon discovered on the rear sill of car 61046 at a point about a foot southerly of the drawbar.

1. Plaintiff complains of the exclusion by the trial court of his offer to show that shortly after the train passed over the decedent, and while he lay beside the track, he said: "I fell off from a car without a running board." This was offered as part of the res gestæ for the purpose of showing that plaintiff's intestate fell from car 1765, which was not provided with running boards and platform, and as explaining the condition of the plaintiffs intestate when they found him at that time.

The doctrine of the subject of res gestæ, as it is understood and applied in the courts of this state, is fully discussed in the recent case of Comstock's Adm'r v. Jacobs, 89 Vt. 133, 94 Atl. 497, Ann. Cas. 1918A, 465, and the law settled as to the rules that govern the admission of verbal acts which constitute a part of the res gestæ. In order to make such evidence admissible, the following combined requirements must be met: There must be a principal fact or transaction in issue or relevant thereto. Then only such declarations are admissible as grow out of the transaction, serve to illustrate its character, are contemporaneous with, and derive credit from, it. The act itself must be equivocal, and the declaration must give definite significance to it by supplying what is missing. The declaration must be part of the transaction and must be offered to qualify and explain it, the words being subsidiary and appurtenant to the act.

The offered evidence plainly falls to meet the requirements of the law; for, whatever may be said in favor of the offer coming within some of the provisions of the rule stated, it signally fails when applied to all the requirements, and these must be met if the evidence is to be received. It is sufficient for the purpose of this discussion to call attention to that part of the rule that requires that the declaration shall be contemporaneous with the transaction. In this regard the offer falls short of the requirement. The declaration was a mere narrative of a past event and as such could not be admitted under our decisions.

The plaintiff does not seriously contend that the Jacobs Case is not authority against him on the subject of verbal acts, nor does he question the reasoning of the court as applied to the facts of that case. But he says the case is not an authority against the admission of decedent's declaration on the ground that it was a "spontaneous exclamation" so associated with the events preceding and accompanying it as to make it evidence.

A typical case of this kind is a statement or exclamation by an injured person immediately after the injury, declaring the circumstances of the injury, or by a person present at an affray, a railroad collision, or other exciting occasion asserting the circumstances of it as observed by him. 3 Wigmore on Evidence, § 1746.

The plaintiff insists that the law as laid down by Prof. Wigmore exactly fits this case, that the statement offered was made on just such a startling occasion, before there was time to fabricate and concerning the circumstances of the occurrence, as the law contemplates. It must be admitted that the facts of this case make a typical case of the kind referred to by Prof. Wigmore, but this is a question upon which different jurisdictions have divided in opinion. Some states, whose courts are entitled to the highest respect, have admitted such declarations, while others have excluded them. It is enough for the purposes of this case that the courts of Vermont have taken the latter view of the law. The rule in Vermont was stated by Redfield, C. J., in State v. Davidson, 30 Vt. 377, 383, 73 Am. Dec. 312, as follows:

"It is well settled that the declarations of a party, injured when no one is present, are not evidence to show the manner in which the injury occurred, however nearly contemporaneous with the occurrence. Such declarations do not tend to characterize the transaction, and are, by consequence, no part of it, and cannot be admitted as such."

In the case of Downer and Wife v. Strafford, 47 Vt. 579, the facts show that an accident had happened whereby the wife had been thrown to the ground. Immediately and as soon as witnesses could go about six rods and while the said plaintiff was still lying on the ground and her son was holding the horse right near her, the son told what caused the accident it was held that the declaration was mere hearsay and not admissible as part of the res gestæ. Wheeler, J., in disposing of the question said:

"His statement was a narrative of a past transaction, and not...