Hermes v. Chi. & N. W. Ry. Co.

• Decision Date: 15 December 1891
• Citation: 80 Wis. 590,50 N.W. 584
• Court: Wisconsin Supreme Court
• Parties: HERMES v. CHICAGO & N. W. RY. CO.

80 Wis. 590

50 N.W. 584

HERMES

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Dec. 15, 1891.

Appeal from circuit court, Brown county; SAMUEL D. HASTINGS, Judge.

Action by John Hermes, administrator, against the Chicago & Northwestern Railway Company for killing Charles Hermes, a child aged two years and eight months. Judgment for defendant. Plaintiff appeals. Reversed.Wigman & Martin, for appellant.

Winkler,

Flanders, Smith, Bottum & Vilas,

for respondent.

COLE, C. J.

It was error to sustain the objection to the question asked the witness Hubert Hermes as to whether he heard the engineer say anything as to how he came to run over the child. This conversation between the witness and the engineer was within a very few minutes after the child was killed, and there can be no doubt that what the engineer said about the accident was a part of the res gestæ, and was admissible on that ground. “The idea of the res gestæ presupposes a main fact or principal transaction, and the res gestæ mean the circumstances, facts, and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character.” Carter v. Buchannon, 3 Ga. 513; 1 Greenl. Ev. § 109 et seq.; Hooker v. Railway Co., 76 Wis. 547, 44 N. W. Rep. 1085;Keyser v. Railway Co., 66 Mich. 390, 33 N. W. Rep. 867;O'Connor v. Railway Co., 27 Minn. 166, 6 N. W. Rep. 481;Insurance Co. v. Mosley, 8 Wall. 397; Railroad Co. v. Coyle, 55 Pa. St. 396. There is nothing in this case which can distinguish it from that of Hooker v. Railway Co., supra. There testimony of a witness as to what the engineer said about the accident was admitted on the trial, under objection, and this court held it was not error. As we have said, the conversation between the witness and the engineer occurred immediately after the accident. The declaration of the engineer had or might have had a tendency to explain how it happened. It surely grew out of that transaction, and served to illustrate its character. But it is said the record does not disclose the purpose for which the question was asked, nor show that the answer to the question would have been material. If it was a part of the res gestæ, as we think it was, the plaintiff was entitled to have it before the jury for what it was worth. The surrounding circumstances, constituting parts of the res gestæ, may always be shown to the jury, along with the principal fact. 1 Greenl. Ev. § 108. It is impossible to say that it did not have a direct and...