Leach v. Oregon Short Line R. Co.

• Decision Date: 03 May 1905
• Docket Number: 1601
• Citation: 81 P. 90,29 Utah 285
• Court: Utah Supreme Court
• Parties: LEACH et al. v. OREGON SHORT LINE R. CO

81 P. 90

29 Utah 285

LEACH et al. v. OREGON SHORT LINE R. CO

No. 1601

Supreme Court of Utah

May 3, 1905

APPEAL from District Court, Fifth District; T. Marioneaux, Judge.

Action by Grace L. Leach individually, and as guardian ad litem of Lola Leach, a minor, against the Oregon Short Line Railroad Company. From a judgment for plaintiffs, defendant appeals.

AFFIRMED.

P. L Williams and Geo. H. Smith for appellants.

APPELLANT'S POINTS.

It is not every declaration made at or immediately after an occurrence or transaction that constitutes it res gestae, but such statements in a proper case can only become res gestae where the conduct or action to which it is sought to attach legal significance, in which there is intrinsically none until its whole tenor is made definite, is material; and it is by words accompanying the conduct that this tenor is more fully and precisely defined. Thus it is that the words spoken are not in themselves used as testimony, but they are considered merely in relation to giving to the conduct or occupation an adverse significance. How was he connected with the transaction in any way, and therefore, how could this testimony become res gestae or anything else but mere hearsay? Where in the record does it appear that the conductor was acting within his employment or had authority to bind the defendant by any act or statement after a transaction had taken place, and in which he was not an actor? And yet all of these things are necessary to make the testimony admissible. (1 Greenleaf [16 Ed.], 184; Durken v. Cent. P. R. R. Co., 69 Ca. 533, 58 Am. Rep. 562; Vicksburg & M. R. Co. v. O'Brien, 119 U.S. 99; Packet Co. v. Clough, 20 Wall. 546; O., etc., R v. Stein, 133 Ind. 250; Cent. Ry. et al. v Maltby, 90 Ga. 632; Griffin v. Montgomery, R. R. Co., 26 Ga. 111; Robinson v. Filchburg R. R. Co., 7 Gray 92; Alabama, etc., R. R. v. Hawk, 72 Ala. 112; Williamson v. Cambridge R. R. Co., 10 N.E. 790; Adams v. Hannibal R. R. Co., 74 Mo. 553; Patterson v. St. L. Wabash, etc., Ry. Co., 54 Mich. 91, 18 A. & E. R. R. Cases 130; Empire Mill Co. v. Lovell, 77 Iowa 100; Adams Ex. Co. v. Harris, 120 Ind. 73; Sweetland v. Ill. etc., Tel. Co., 27 Iowa 433; Penn. R. R. Co. v. Brooks, 57 Pa. 339; St. L. I. M. & S. R. R. Co. v. Sweet, 27 Ark. 287; San Antonio & A. P. R. R. Co. v. Robinson, 73 Tex. 277; Curl v. Chi. R. I. & P. R. R. Co., 63 Iowa 417, 11 A. & E. R. R. Cases 85.)

We next submit that the court erred in refusing to charge the jury as requested by defendant in its request No. 4, and in failing and refusing to instruct the jury at all upon the subject of assumed risk of the servant in the performance of his work. By the answer in this case the defense of assumed risk was affirmatively pleaded.

Under this state of facts it was error for the court to refuse the instruction requested, which embodied this defense, and to fail to charge at all upon this question. To be sure, the jury may not have found as a fact that it was a risk incident to the employment, or that deceased knew of the danger or should have known of it, but clearly here were facts upon which such a finding could properly be based and from which certain inferences could justly be drawn, and it was therefore not for the court to take that matter out of the hands of the jury. The defendant was entitled to have them pass upon that matter of defense. (Downey v. Gemini Mining Company, 24 Utah 436; Kendall v. Brown, 74 Ill. 232; Tex. P. Rd. Co. v. Bryant, 8 Tex. Civil App. 134; Pa. Co. v. Ebaugh, 152 Ind. 531; Miner v. Conn. River Rd. Co., 153 Mass. 398, 26 N.E. 994; State v. Gibbons, 10 Iowa 117; Chicago, Ind. & L. Ry. Co. v. Glover, 154 Ind. 584, 57 N.E. 244; Woodell v. W.Va. Improvement Co., 38 W.Va. 23; s. c., 17 S.E. 386; Pierce v. Calvin, 82 F. 550; Mundle v. Hill Mfg. Co., 86 Me. 400; Foley v. Jersey City Elec. Light Co., 54 N. J. 411, 24 A. 487; Day v. C. C. C. & St. L. Rd., 137 Ind. 210, 36 N.E. 854; Klatt v. N.C. Foster L. Co., 92 Wis. 622; s. c., 66 N.W. 791; Garety v. King, 41 N.Y.S. 633; Ragon v. Toledo Ann Arbor & N. Mich. Rd. Co., 97 Mich. 265; s. c., 54 N.W. 612.)

"It is a rule of universal acceptance by the courts of this country that an employee assumes all the ordinary dangers of his employment which are known to him or which by the exercise of ordinary diligence would have been known to him. It is alike the duty of the employer and the employee to be diligent in the discharge of their respective duties for the avoidance of personal injury to the other, and both are alike bound to know, and will be chargeable as knowing all the facts and conditions that a person of ordinary caution and prudence in a like situation would have discovered. Neither may close his eyes nor carelessly neglect observation and inquiry for the safety of the employee, and find immunity on the ground that he did not have actual knowledge of the danger. In such cases constructive knowledge has the same force and effect as actual knowledge." (Louisville & Nash. Rd. Co. v. Hall, 99 Ala. 112, 8 So. 371; A. T. & S. F. Rd. v. Alsdorf, 47 Ill.App. 200; Louisville Rd. Co. v. Shivell, 13 Ky. Law Rep. 902, 18 S.W. 944; Hewett v. Flint & P. M. Rd. Co., 67 Mich.--, 34 N.W. 659; Hill v. Meyer Bros. Drug Co., 140 Mo. 433, 41 S.W. 909; Benjamin Atha & I. Co. v. Costello, 63 N. J. Law 27, 42 A. 766; Ferguson v. Phoenix Cotton Mills, 106 Tenn. 236, 61 S.W. 53; Wells v. Coe, 9 Colo. 159, 11 P. 50; Craven v. Smith, 89 Wis. 119, 61 N.W. 317; Taylor-Craig Corp. v. Hoge, 69 F. 581; U. P. R. R. v. Monden, 50 Kan. 539, 31 P. 1002; Haley v. Jump River Lumber Co., 81 Wis. 412, 51 N.W. 321, 956; Ill. C. R. R. v. Spoeleder, 90 Ill.App. 590; Boyd v. Harris, 176 Pa. 486, 35 A. 222; Lovejoy v. Boston & R. R. Corp., 125 Mass. 79, 28 Am. Rep. 206; Thain v. Old Colony R. R. Co., 161 Mass. 353, 47 N.E. 309; Scedmore v. M. L. S. & W. R. R. Co., 89 Wis. 188, 61 N.W. 765; Mo. P. R. R. Co. v. Sommers, 71 Tex. 700, 9 S.W. 741, 78 Tex. 439, 14 S.W. 779; Phelps v. C. & W. M. R. R., 122 Mich. 171, 81 N.W. 101; Benson v. N.Y. N.H. & H. R. R. Co., 49 A. 689; Fisk v. Fitchburg R. R. Co., 158 Mass. 238, 33 N.E. 510.)

Snyder & Wright and Powers, Straup & Lipman for respondents.

RESPONDENT'S POINTS.

At the trial the defense was, in part, that Leach fell off. The declaration of Hawkins, made at the time and before he had time to reflect upon its consequences, was a material part of the res gestae; it explained a disputed point. It occurred while the matter was happening, before they stopped the train or picked up Leach. Counsel misstate the rule, when they say the conductor must have been acting in the line of his authority before his statement would bind the company, after the transation had happened. As a contractual statement, this would be true, but as res gestae, the rule at least, as laid down by the better reasoned cases, is to the contrary. (Durkee v. Cent. P. Ry. Co., 69 Cal. 11 P. 130.)

Subsequent declarations are admissible though not precisely coincident. (24 Am. and Eng. Enc. Law, [2 Ed.], p. 665, n. 2 and cases.) The text is fully borne out by the cases, see especially: (Ry. Co. v. Buck, 116 Ind. 566, 19 N.E. 453, and cases; Gundy v. Humphries, 35 Ala. 624; Slavens v. U. P. Ry. Co., 97 F. 255-62; Ry. Co. v. Berry, 2 Ind.App. 427, 28 N.E. 714; 21 Am. and Eng., Enc. [1 Ed], p. 99, 102 Subd. 2; Leahey v. Ry. Co., 97 Mo. 165, 10 S.W. 58; Ins. Co. v. Mosley, 8 Wall. 397, 19 L.Ed. 437.)

In some jurisdictions, statements made in answer to inquiries are inadmissible (Louisville Ry. Co. v. Pearson, 97 Ala. 211), while in others this distinction is not observed (Leahy v. Ry. Co., supra; Ry. Co. v. Berry, supra. It is unnecessary to pursue either line, however, in this case, or to attempt to reconcile them, because this case presents no such circumstance. Here the remark of Hawkins was the spontaneous outburst explaining his return to the car, his orders to Harris, and his action in stopping the train, and was clearly admissible. (1 Greenleaf Ev. 108; Leahy v. Ry. Co., supra; 24 Am. and Eng. Enc. [2 Ed.] 664, n. 6, 665 n. 2; Dunbar v. McGill, 37 N.W. 285-7; Ry. Co. v. Coyle, 55 Pa. 396; Ott v. Cunningham, 58 P. 126; Sullivan v. City, 13 Utah 122; People v. Kessler, 13 Utah 69-78, et seq.)

It is not essential to the admission of declarations when they form parts of acts, as res gestae, that they be done by parties in interest. It is sufficient if they be done by actors so connected with the principal fact as that the declaration forms a part of it. (Stephanie v. Ry. Co., 19 Utah 196; Openshaw v. Ry. Co., 6 Utah 137.) Moreover, it has become elementary that declarations made by servants and agents of parties are admissible. (21 Am. and Eng. Enc. [1 Ed.], p. 108; Lindborg v. Mining Co., 9 Utah 163; Railroad Co. v. O' Brien, 119 U.S. 99, 30 L.Ed. 199. The Lindborg case was not overruled upon this point by the Kessler Case, 13 Utah 69.

There was no evidence to justify the request No. 4. 1. No evidence that this was one of the ordinary risks. 2. No evidence that this was a risk incident to the business. On the contrary, the evidence shows, if it shows anything on this subject, that this was an extroardinary risk. The servant does not assume any such risk. (L. N. & C. Co. v. Wright, 115 Ind. 378, 16 N.E. 145, and note; s. c., 17 N.E. 584; A. T. & S. F. Ry. Co. v. Rowan, 104 Ind. 88, 3 N.E. 267; St. L. Co. v. Irwin, 37 Kan. 201, 16 P. 146; Boss v. U. P. Ry. Co., 49 N.W. 655-7; Illinois Ter. Ry. Co. v. Thompson, 71 N.E. 328; Garity v. B. B. & C. M. Co., 76 P. 556.)

The doctrine of assumed risk arises out of the contract of hiring and is bottomed entirely upon the existence of knowledge either actual or constructive or imputed on the part of the servant as to the existence of the alleged facts from which the risk essentially...