Indianapolis Street Railway Company v. Taylor

• Decision Date: 03 January 1905
• Docket Number: 20,395
• Citation: 72 N.E. 1045,164 Ind. 155
• Parties: Indianapolis Street Railway Company v. Taylor
• Court: Indiana Supreme Court

72 N.E. 1045

164 Ind. 155

Indianapolis Street Railway Company v. Taylor

No. 20,395

Supreme Court of Indiana

January 3, 1905

Rehearing Denied January 25, 1905.

From Hancock Circuit Court; E. W. Felt, Judge.

Action by Charles E. Taylor against the Indianapolis Street Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Reversed.

F Winter, Marsh & Cook and W. H. Latta, for appellant.

William V. Rooker, for appellee.

OPINION

Jordan, J.

Action by appellee to recover for personal injuries. The first and second paragraphs of the complaint charge negligence in the operation of the car by which appellee was struck. The third paragraph alleges that the injury was wilfully inflicted. The complaint discloses that on the 11th day of November, 1899, appellee was riding a bicycle in the city of Indianapolis, and while attempting to ride across a double-track line of appellant's railway on Illinois street he was struck by a car running south thereon, and was seriously injured. The cause was originally tried on change of venue in the Shelby Circuit Court, wherein appellee recovered a judgment, which subsequently, on an appeal to this court, was reversed on account of error in the trial court's charge to the jury. Indianapolis St. R. Co. v. Taylor (1902), 158 Ind. 274, 63 N.E. 456. After the cause was reversed and remanded, it was tried by jury, on change of venue, in the Hancock Circuit Court, and a verdict in favor of appellee for $ 6,000 was returned. Along with this general verdict the jury returned answers to a series of interrogatories. Over appellant's motion for a new trial, judgment was rendered against it for the amount of damages assessed by the jury. From this judgment it appeals.

Among the alleged errors discussed and relied upon for reversal are the following: (1) Denying a request for the court to instruct the jury to find in appellant's favor on the third paragraph of the complaint; (2) admission of certain evidence; (3) giving certain instructions to the jury. In answer to the objections of counsel for appellee it may be said that the court's rulings on giving and in refusing certain instructions, together with its rulings on other motions and matters which appellant urges for a reversal, have all been properly brought into the record by bills of exceptions.

At the close of the evidence appellant unsuccessfully moved that the court give a peremptory charge to the jury to find in its favor on the third paragraph of the complaint. Appellant contends that in overruling the motion the court erred, as there is no evidence whatever to warrant a finding that the injury was wilfully inflicted, as charged in said paragraph. It will, however, serve no useful purpose for us to review the evidence in order to determine this question, for such error, if any, was harmless, because the special findings of the jury disclose that the general verdict is not based upon the third paragraph, but is predicated on the paragraphs of the complaint which charge that the injury resulted from negligence in the operation of the car by which appellee was struck. It is shown by the evidence that the accident in controversy occurred between 8 and 9 o'clock on the night of November 11, 1899. Appellee at the time was riding a bicycle on Vermont street, going east across Illinois street, and in his attempt to cross the latter street he was struck by one of appellant's cars going south thereon, on the west track. The west track was used by cars running south, and the east track by cars running north. After appellee was struck he was carried by the fender of the car some distance, until the car stopped in front of Flanner & Buchanan's undertaking establishment on Illinois street, in front of which there was a light burning.

James H. Bacon, a witness on behalf of appellee, testified that on the night of the accident he and his wife, about 8:30 o'clock, were walking on Illinois street between Vermont and New York streets. As they were passing along, his attention was attracted by a noise which sounded as though the street car going south at the time had struck something. The witness stated that soon after he heard this noise the car in question stopped in front of the above-mentioned undertaking establishment. He testified that he had reached this point by the time the car stopped. He stated that when the car stopped he saw a man under it, who proved to be appellee. After the car stopped, it appears the motorman alighted therefrom. The witness was asked by appellee's counsel to state to the jury what he (the witness) said at that time to the motorman. In response to this question he testified as follows: "When he [the motorman] got off of the car I says to him, 'You run without any lights; you are running dark.' I says, 'You had better get up there and back the car so we can get this party out.'" To these remarks the motorman made no reply. This evidence was permitted to go to the jury over the objections and exceptions of appellant. After the evidence had been given, appellant unsuccessfully moved the court to strike it out. Its counsel earnestly contend that in admitting the declaration or remarks in question, and also in denying its motion to strike them out, the court clearly erred. The decision in the appeal of Indianapolis St. R. Co. v. Whitaker (1903), 160 Ind. 125, 66 N.E. 433, is cited and urged in support of their contention. The question, as here presented, is the same as the one involved in that case, and the decision therein must be accepted as a ruling precedent on the point here involved. Counsel for appellee, however, insist that the evidence was admissible as a part of the res gestae.

In Indianapolis St. R. Co. v. Whitaker supra, a witness on behalf of the plaintiff was asked the following question: "Was anything said there by you to the conductor while she [meaning plaintiff] was on the ground, about them stopping the car, or Mrs. Whitaker falling?" The witness, over the objections of the defendant in that case, was permitted to testify in response to the question as follows: "Yes, sir; I said when she first fell, 'If you had stopped and let her off, this would not have occurred.'" To this remark the conductor in that case made no reply. The declarant James H. Bacon, under the facts as shown, was wholly disconnected with the occurrence, as was the witness in the case cited. He was nothing more than a mere bystander or looker-on at the time he made the remarks or declarations in question. This court in the Whitaker case, in reviewing the admissibility of the evidence as there involved, said: "Utterances and exclamations of participants, or of persons acting in concert, made immediately before or after or in the execution of an act, which go to illustrate the character and quality of the act, are usually admissible on the ground that they are a part of the res gestae, and provable like any other fact that elucidates the issue. The rule, however, seems to be exclusive, that to render the expression or declaration of another admissible, the party making it must have been so related to the occurrence as to make his declaration a part of it. The test seems to be that to render the utterance or declaration of another admissible, it must flow from one of the actors, or from one sustaining some relation to the transaction, and be so intimately connected with the litigated act as to be the act speaking of itself through the witness, and not the witness speaking the words of another, concerning the act. Gillett, Indirect & Collat. Ev., § 290; Wilkins v....