Havens v. R.I. Suburban Ry. Co.

• Decision Date: 24 February 1904
• Citation: 26 R.I. 48,58 A. 247
• Parties: HAVENS v. RHODE ISLAND SUBURBAN RY. CO.
• Court: Rhode Island Supreme Court

58 A. 247

26 R.I. 48

HAVENS

v. RHODE ISLAND SUBURBAN RY. CO.

Supreme Court of Rhode Island.

Feb. 24, 1904.

Action by Silas H. Havens against the Rhode Island Suburban Railway Company. Judgment for plaintiff. Defendant's petition for a new trial granted.

Argued before TILLINGHAST, DOUGLAS, and BLODGETT, JJ.

John M. Brennan and Richard E. Lyman, for plaintiff.

Henry W. Hayes, Frank T. Easton, and Lefferts S. Hoffman, for defendant.

TILLINGHAST, J. This is an action of trespass on the case for negligence, and is brought to recover damages for injuries sustained by the plaintiff on the 22d day of October, 1900, by reason of a collision between a car of the defendant and a car of the Union Railway Company. The collision occurred about 9 o'clock p. m. near to the Royal Mills Switch, so called, upon the high way at Riverpoint, in the town of Warwick The collision was occasioned in this way viz.: The car of the defendant upon which the plaintiff was serving as conductor was run by the turnout at said switch, at which it should have been held, and met the other car upon the single track. The declaration alleges that the defendant was negligent, in that it employed and had upon its car, as motorman, at the time of the accident, one Joe Fenner, who was an unfit, unskilled, and improper person to serve in that capacity, and that, because of his lack of skill and knowledge, he ran the car by the turnout, and thereby caused the accident by which the plaintiff was injured. At the trial of the case in the common pleas division a verdict was rendered for the plaintiff, and his damages were assessed at the sum of $5,000, and the case is now before us on the defendant's petition for a new trial on the grounds (1) that the presiding justice erred in the admission of certain testimony; (2) that he erred in his charge to the jury, and in his rulings upon certain requests to charge; (3) that the verdict was against the evidence and the weight thereof; and (4) that the damages are excessive.

The ruling complained of in the admission of testimony was this: Henry B. Whitaker, a witness for the plaintiff, was allowed, against objection, to state what Mr. Albert T. Potter, the general manager of the defendant corporation, said to him, the next morning after the accident, about the accident viz.: "Q. Has there been a conversation between you and Mr. Potter? A. There has. Q. When was it? A. After the accident Q. How soon after? A. The next morning. Q. Was this conversation with reference to what had happened at the accident? Was it with reference to this accident? A. Yes, sir. Q. What did Mr. Potter say to you about Fenner? A. He told me not to let him run again. * * * Q. Did he say why? A. He said he wasn't a regularly broke in man, and he wasn't competent." The witness Whitaker was in the employ of the defendant corporation at the time of the accident, in the capacity of foreman of the car barn and station at Riverpoint; and it was by his direction that Fenner went upon the car as motorman on the night of the accident, the regular motorman being absent. There was an approved list of motormen at the car barn, but Fenner's name was not on the list; and, according to Whitaker's testimony, Fenner had not been instructed or trained as a motorman. The defendant's objection to Whitaker's testimony as to what Manager Potter told him as aforesaid was, first, that it was a statement made so long after the happening of the accident as not to form any part of the res gestæ; and second, that it was made by an agent of the defendant who had no power or authority to bind the defendant by anything that he might say in the premises. The plaintiff contends, on the other hand, that the statement of Manager Potter was part of the res gestæ, and hence properly admissible in evidence. He argues that the res gestæ in this case was the employment and supplying of an unfit and incompetent fellow servant, and that the improper action of this fellow servant at the time of the accident was but the natural and logical result of the defendant's negligence in placing him in a position of responsibility, and that the facts of the accident itself form but a small part of the res gestæ of the case.

That the declarations or admissions of an agent, made while acting within the scope of his authority in regard to the transactions depending at the very time, may be given in evidence against his principal, as a part of the res gestæ, is a well-settled rule of law. For, where the acts of the agent will bind the principal, there his representations, declarations, and admissions respecting the subject-matter will also bind him, if made at the same time and constituting a part of the transaction. Sto. Ag. (9th Ed.) § 134. But the declarations or admissions of an agent not made at the time of the transaction to which they relate are not competent evidence against the principal unless they are so immediately connected with the transaction in point of time and circumstance as in fact to constitute a part thereof. See A. & E. Ency. Law (2d Ed.) vol. 1, pp. 695-698, and cases cited. In State v. Murphy, 16 R. I. 530, 17 Atl. 998, Stiness, J., in considering the question as to the admissibility of statements made subsequent to the happening of the transaction, said: "The principle upon which the admission of such evidence rests is that declarations after an act may nevertheless spring so naturally and involuntarily from the thing done as to reveal its character, and thus belong to it and be a part of it; also to rebut all inference of calculation in making the declarations, and thus to entitle them to credit and weight as evidence of the transaction itself." In that case the statements which were admitted in evidence as part of the res gestæ were made about 10 or 15 minutes after the deadly assault in question, and by the person who was assaulted. In Graves v. People, 18 Colo. 170, 32 Pac. 63, Chief Justice Hayt, in delivering the opinion of the court, adopts Mr. Wharton's definition of res gestæ, which is as follows: "Res gestæ are events speaking for themselves through the instinctive words and acts of participants, not the words and acts of participants when narrating the events. What is done or said by participants under the immediate spur of a transaction becomes thus part of the transaction, because it is then the transaction that thus speaks. In such cases it is not necessary to examine as witnesses the persons who, as participators in the transaction, thus instinctively spoke or acted. What they did or said is not hearsay. It is part of the transaction itself." Under the law as above declared, we fail to see that the evidence objected to in the case at bar was admissible as part of the res gestae. For, in the first place, Mr. Potter was not a participant in the transaction in question, and knew nothing about it until informed thereof the day following; and, in the second place, his declaration or admission did not spring naturally and involuntarily from the thing done, so as to illustrate its character and form a part thereof, but, on the contrary, it was a statement, evidently deliberately made, after learning from another of the happening of the accident in other words, the statement and admission simply had to do with Mr. Potter's decision that, in view of what had happened, and in view of the incompetency of Fenner, he should not be permitted to again act as motorman. It therefore lacks the most essential elements of res gestæ. That it was competent for the plaintiff to prove, by proper testimony, that Manager Potter had previous knowledge of the incompetency of the motorman, may be conceded. For it is doubtless true that knowledge by a superintendent or manager having the control and management of a street railroad, including the power to employ and discharge conductors and motormen, is knowledge to the company. Huntingdon Railway Co. v. Decker, 82 Pa. 119. But while this is so, it was held in the case just cited that a conversation had with the superintendent on the day following the accident and relating thereto, to the effect that the conductor had disobeyed orders, etc., was inadmissible, and a new trial was granted on account of the improper admission of this testimony. The case of McDermott v. Railway Co., 73 Mo. 510, 39 Am. Rep. 526, is strongly in point in support of the position which we have taken. There the plaintiff was employed as a laborer on track repairs, and was injured, as he alleged, in consequence of the negligence of one Dawson, the defendant's section foreman, in having permitted a band car to be on the track when the track should have been clear for the passage of trains, and in negligently and carelessly ordering the plaintiff to remove the car in the face of an approaching train. The plaintiff further alleged that the section foreman was incompetent, and that the defendant had knowledge of that fact before the injury complained of occurred. To sustain the allegation of the incompetency of Dawson, and the knowledge of the company that he was incompetent, the plaintiff, against defendant's objection, was permitted to testify that some days after the accident he saw Mr. Goodwin, the defendant's roadmaster when the accident occurred, whose duty it was to employ and discharge section foremen, and that Goodwin told the plaintiff that Dawson was incompetent. And the principal question in that case relates to the admissibility of the evidence referred to. In delivering the opinion of the court, Henry, J., quotes with approval the statement of Chief Justice Dallas in Gow's N. P. Rep. p. 456, as follows: "It is not true that, where an agency is established, the declarations of the agent are admitted in evidence merely because they are his declarations. They are only evidence when they form part of the contract entered into by the agent on the behalf of his principal, and in that single case they become admissible." Judge Henry then said: "The...