Grant v. Kansas City Southern Railway Company

• Decision Date: 02 June 1913
• Citation: Grant v. Kansas City Southern Railway Company, 157 S.W. 1016, 172 Mo.App. 334 (Kan. App. 1913)
• Parties: NINA E. GRANT, Administratrix, Appellant, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Respondent
• Court: Kansas Court of Appeals

157 S.W. 1016

172 Mo.App. 334

NINA E. GRANT, Administratrix, Appellant, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

June 2, 1913

Appeal from Jackson Circuit Court.--Hon. Jas. H. Slover, Judge.

Reversed and remanded.

W. J Costigan and E. H. Gamble for appellant.

(1) The declaration of deceased as to the cause of his injury was competent.Missouri cases rejecting declarations of employees who perpetrated the injury, made after the event, holding that they are neither admissions of the principal nor res gestae.Price v. Thornton,10 Mo.App. 92;Ladd v. Couzins,35 Mo. 513;McDermott v. Railroad,73 Mo. 516;Adams v. Railroad,74 Mo. 553;Devlin v. Railroad,87 Mo. 545;Barker v Railroad,126 Mo. 143;Ruschenberg v. Railroad,161 Mo. 70;Koenig v. Railroad,173 Mo. 698;Redmon v. Railroad,200 Mo. 1;Frye v Railroad,200 Mo. 377;Strode v. Conkey,105 Mo.App. 12;White v. Railroad,132 Mo.App. 339.(2) The rule is more liberal as to admitting declarations by the person injured, and the declarations of Arthur Grant, as to the cause of his injury, should have been admitted as res gestae.Brownell v. Railroad,47 Mo. 239;Harriman v. Stowe,57 Mo. 93;Enthwistle v. Feightner,60 Mo. 214;Stoeckman v. Railroad,15 Mo.App. 503;Leahey v. Railroad,97 Mo. 165;State v. Martin,124 Mo. 514;Stevens v. Walpole,76 Mo.App. 213.(3)The trial court erred in refusing to hold that, under the Arkansas laws, the showing to the effect that deceased was killed by the running of a train in itself, in the absence of testimony exculpating defendant from blame, warranted a recovery.Constitution of Arkansas, art. 17, sec. 12;Kirby's Digest of Arkansas Statutes, sec. 6607 and 6773;Railroad v. Payne,33 Ark. 816;Railroad v. Taylor,57 Ark. 136;Railroad v. Townsend,41 Ark. 382;Railroad v. Eubanks,48 Ark. 460;Railroad v. Rice,51 Ark. 467;Railroad v. Hill,79 Ark. 76;Railroad v. Standifer,81 Ark. 275, 99 S.W. 81;Chicago Mill Co. v. Cooper,90 Ark. 326, 119 S.W. 672;Tilley v. Railroad,49 Ark. 535;Railroad v. Neeley, 63 Ark. 636, 46 S.W. 30.

Cyrus Crane and George J. Mersereau for respondent.

(1) The declarations of the deceased were not admissible.They were not part of the res gestae.Leahey v. Railroad,97 Mo. 172;Dunlap v. Railroad,145 Mo.App. 221;Hooper v. Insurance Co.,166 Mo.App. 213;Jewell v. Manufacturing Co.,166 Mo.App. 563.(2)(a)The trial court did not err in refusing to submit the case to the jury, because the circumstances were not sufficient to make a case of liability.(b)A case of liability was not made out even if the declaration had been admitted.Stoeckman v. Railroad,15 Mo.App. 513.(3) The Arkansas statute as construed and interpreted by the Supreme Court of that State does not make out a case for plaintiff.Railroad v. Standifer, 81 Ark. 275, 99 S.W. 81.

OPINION

ELLISON, P. J.

--Plaintiff is the administratrix of the estate of Arthur Grant, who was fatally injured by being run over by one of defendant's trains at Mena, Arkansas, which she charges was caused by the absence of an "iron handhold" on the end of the tender of the engine.

Deceased was in the employ of defendant as head brakeman on a freight train.The train had left a point sixty miles south and had arrived at Mena where the engine and crew were to be changed and the train be taken thence on north by another engine and crew.When the train arrived at Mena a freight train, also bound north, was standing in on the siding, which made it necessary that the train involved in this controversy stand on the main track just below the switch, the engine being perhaps 150 feet from the rear of the other train.There each stood for near an hour, waiting for a southbound passenger train to arrive.When the latter train got in, the freight train standing on the siding began to move out, making room for the train in controversy to move in and clear the main track so the passenger could pass on its way.It did immediately begin to move, following closely on the out-going train but intending to stop at the upper end of the siding, where the engine would be detached and a fresh one and new crew substituted.It was deceased's duty as head brakeman to be on the front end of the car next to the engine while approaching or moving through a station.Presumably during the long wait, he had left the train intending to board it as it started into the siding.At any rate, as the train began to move forward, the engineer (plaintiff's witness) saw him about 150 feet up the track walking back towards the engine on the east side of the track.He walked by the engine as it moved on at about three miles an hour.He had his lantern and was last seen by the engineer when opposite the rear end of the tender and about four feet east of it.There was a step at the rear end of the tender and there had been above it an iron "handhold."With the aid of these one could climb on top of the tender.So there was a "ladder" at one, or the other, end of the car next to the tender.But at this time the handhold was not there, and there was evidence tending to show that it had been missing several days.The train, which was near a quarter of a mile in length, went on into the siding, stopping with the engine up at the upper end.Deceased was found lying by the side of the track near where last seen, with his arm about crushed off, so that it was amputated, and from the effect of which he died in twenty-four hours.He being dead, and there being no eyewitnesses, the engineer being the last one to see him before the catastrophe, the question to be determined, if possible, is what caused his injury and what part in its happening did he, himself, take?The theory of plaintiff is, and her case depends upon its correctness and the proof of it, that in the dark he did not see the absence of the handhold and in reaching for it, at the same time attempting to put his foot on the step, he stumbled and fell with his arm under the car.Whatever tendency there was in the testimony of the engineer, was to disprove this, for he last saw him opposite the handhold and four feet to the east, walking away, and to reach it he would have to turn and run back.

Plaintiff was thus brought to depend upon a declaration of deceased, which she claims was a part of the res gestae and therefore proper evidence.Proof of this declaration, as offered, came through the lips of one W. A. Grant, a cousin of deceased.He says that after he heard of the misfortune he went to the scene, when deceased said to him: "'Hello Bill.'I says, 'What's the matter, Arthur?'He says, 'I've lost a wing.'I says, 'How and where did it happen?'He says, 'The hold was gone and I stumbled and fell.'I says, 'That's too bad.'"The trial court refused the evidence and that ruling is the main ground of the appeal.The determination of what is a part of the res gestae is generally difficult.If the words of the party interested are the narration or explanation of a past event, they are merely self-serving declarations.They may be the words of a truthful man, but he is frail and subject to the influence of self-interest, and being made without opportunity for those whom they affect to defend themselves, safety only lies in their absolute inadmissibility.But if they are spontaneous exclamations, they are considered a part of the occurrence, and are called verbal acts, and, as such, you may prove them, just as you would prove the man's physical acts.But to be considered spontaneous exclamations, or statements, they need not necessarily be simultaneous or coincident with the main fact.Thus, where a physical act has ended, but it caused unconsciousness, a declaration immediately following restoration, explaining or illustrating the character of the physical happening, might well be a part of it--the unconscious blank not, in reality, being a disconnection.We need not say that unconsciousness is the test when time intervenes.It is used here merely as illustrative.If the declaration is so clearly connected with the transaction that it can, in the ordinary course of affairs, be said to be the spontaneous exclamation of the real cause, it is admissible; for, in such case they form a continuous transaction.Disconnection destroys the rule and its reason.Thus, in Leahey v. Cass Ave. & F. G. Ry. Co.,97 Mo. 165, 173, 10 S.W. 58, a boy was hurt by a street car.He was picked up and carried to a near-by house and laid on a cot, and within five or ten minutes, in answer to a question as to how he came to be hurt, said the driver kicked him off the car step.This was held to be the statement of a past event and inadmissible.The case has been frequently approved by the Supreme Court.[Ruschenberg v. Railway Co.,161 Mo. 70;Barker v. Railway Co.,126 Mo. 143;State v. Hendricks,172 Mo. 654, 73 S.W. 194;andRedmon v. Railway Co.,185 Mo. 1.

In Dunlap v. Railroad,145 Mo.App. 215, we held that the statement of an injured party who was injured in a mail car, that the ventilator had been made to fall upon his foot by the rough handling of the car, made after the injury and after the car had been stopped, was inadmissible on the ground that it was but a statement of a past transaction.On the other hand in the recent, yet unreported, case of Giles v. Railway Co., we held that a statement of the injured party while yet under the car and within two minutes of the accident, was spontaneous and part of the act in controversy and admissible as res gestae.

In Hooper v. Insurance Co.,166 Mo.App. 209, 148 S.W. 116 a man fell to the floor of a running street car.The question was whether he fell from a lurch of the car, or sank down by reason of a stroke of apoplexy.He was carried to his own home...