International & G. N. R. Co. v. Anderson

• Decision Date: 11 December 1891
• Citation: 17 S.W. 1039
• Court: Texas Supreme Court
• Parties: INTERNATIONAL & G. N. R. Co. v. ANDERSON.

Page 1039

17 S.W. 1039

INTERNATIONAL & G. N. R. Co. v. ANDERSON.

Supreme Court of Texas.

December 11, 1891.

Appeal from district court, Rusk county; A. J. BOOTY, Judge.

Action by Henry Anderson against the International & Great Northern Railroad Company to recover damages for personal injuries alleged to have been inflicted by a servant of the company. Plaintiff obtained judgment, and defendant appeals. Reversed.

N. B. Morris and Gould & Camp, for appellant. W. C. Buford, W. J. Graham, and J. H. Turner, for appellee.

GAINES, J.

This action was brought by appellee to recover of appellant damages for personal injuries alleged to have been inflicted by a servant of the company. The case made by the pleadings and proof for the plaintiff was that, as a freight train of the defendant company was drawing out of a station, he attempted to board a box-car by means of the ladder, and that thereupon a brakeman accosted him roughly, and ordered him off. He objected, on account of the speed of the train, but the brakeman repeated his order, and struck him a blow which caused him to fall under the wheels, and to receive the injuries of which he complains. On behalf of the railroad company it was claimed in defense —First, that the plaintiff was not interfered with by the brakeman, and that he negligently attempted to board the car while in motion, and was thrown to the ground; and, secondly, that, if he was stricken by the brakeman, the act was not done in the scope of the latter's employment. The testimony showed that the plaintiff fell from a car, and that the wheels passed over him, crushing his arm and breaking his leg. The controversy was as to the cause of the accident. A witness was permitted to testify, over the objection of defendant, "that on the morning of the accident he heard a train going south, and just after it passed he heard some one that he took to be plaintiff crying for help. This was about 150 or 200 yards from witness' house. He immediately got up out of bed, and put on his clothes, and went hurriedly to where plaintiff was lying near the railroad track, badly hurt by the train. No person was there when witness got there. The conductor and other trainmen were within a short distance, coming in that direction. Before they got there plaintiff told witness that a brakeman knocked him off the train, and it ran over him. That the plaintiff was crying out in his misery, and made the statement several times." An exception was reserved to the admission of the testimony, and it is now assigned as error.

Were the declarations of plaintiff admissible as a part of the res gestæ? All declarations or exclamations uttered by the parties to a transaction, and which are contemporaneous with and accompany it, and are calculated to throw light upon the motives and intention of the parties to it, are clearly admissible as parts of the res gestæ. Very respectable authorities restrict the doctrine of res gestæ within the limits indicated by the foregoing definition, and exclude all declarations which are a narration of past occurrences. This is a convenient and salutary rule, and probably the more logical one; and, if it were an open question in this state, we should hesitate long before adopting another. Another rule, applied in many of the American courts at least, is to admit as parts of the res gestæ not only such declarations as accompany the transaction, but also such as are made under such circumstances as will raise a reasonable presumption that they are the spontaneous utterance of thoughts created by or springing out of the transaction itself, and so soon thereafter as to exclude the presumption that they are the result of premeditation or design. Insurance Co. v. Mosley, 8 Wall. 397; Com. v. McPike, 3 Cush. 181; Railroad Co. v. Coyle, 55 Pa. St. 396; Elkins v. McKean, 79 Pa. St. 493; Monday v. State, 32 Ga. 672; People v. Vernon, 35 Cal. 49; Little v. Com., 25 Grat. 921; Harriman v. Stowe, 57 Mo. 93. In most of the cases cited the declarations admitted were the relation of past occurrences. This line of decision has been followed in this court, (Galveston v. Barbour, 62 Tex. 172,) and, in view of the great array of authority in support of that ruling, we deem it best to adhere to it in this case. The declarations under consideration were made at the place of the accident, and within a very few minutes after it occurred, and while the plaintiff was still writhing under the pain inflicted by it. We conclude that the testimony was properly admitted.

There was testimony to the effect that the brakemen on defendant's road were seen to put persons off the train, and to keep them from getting on. The only other testimony bearing upon the question of the authority of the brakeman who was alleged to have put the plaintiff off the train was that of a conductor in the service of the defendant company, who testified that it was the duty of the company's conductors to eject trespassers from the train; that, if they wished, they could delegate this authority to the brakemen, but...