Leahey v. Cass Ave. & F. G. Ry. Co.

• Decision Date: 20 December 1888
• Parties: LEAHEY v. CASS AVE. & F. G. RY. CO.
• Court: Missouri Supreme Court

10 S.W. 58

97 Mo. 165

LEAHEY v. CASS AVE. & F. G. RY. CO.

Supreme Court of Missouri.

December 20, 1888.

1. EVIDENCE — DECLARATIONS — RES GESTÆ.

In an action for death of a boy, caused by injuries received under a horse car, his declarations as to how he got under the car, made at the scene of the accident, and when first picked up, are admissible in evidence, but his declarations made after he had been removed, and the persons connected with the accident have separated, and in answer to questions as to how he got injured, are inadmissible, though made only a short time after the accident.¹

2. SAME — SHOUTS OF BY-STANDER.

In such case evidence that a disinterested by-stander shouted "Murder!" after the accident, is inadmissible.

3. WITNESS — IMPEACHMENT — CONTRADICTORY STATEMENTS.

A witness may be impeached by showing statements made by him out of court, inconsistent with those made in court, after laying the proper foundation therefor.

Appeal from St. Louis circuit court; GEORGE W. LUBKE, Judge.

Action by Ann Leahey against the Cass Avenue & Fair-Ground Railway Company. Judgment for plaintiff, and defendant appeals.

Leonard Wilcox, for appellant. J. F. Merryman, for respondent.

BLACK, J.

1. This is an action to recover statutory damages for the death of James O'Neil, a boy 11 years of age, and the son of the plaintiff. The defendant corporation owns, and with horse-power operates, a street railroad in the city of St. Louis. That the boy was run over by one of defendant's cars, and received wounds and bruises from which he died on the next day, is an undisputed fact. At the time of the accident the car was a few yards east of the Twenty-Fourth Street crossing, going east on Cass avenue. Plaintiff produced evidence tending to show that the boy was standing on the front platform of the car, with the driver, just before and while crossing Twenty-Fourth street; that they appeared to be talking together, and the driver appeared to be angry; that the boy opened the gate, and stepped out backwards on the step, facing and looking at the driver, and appeared to be frightened; and that he stepped and fell off and under the car. One witness says the driver made a pass at the boy with his hand. The defendant's evidence tends to show that this and another boy by the name of Brown were together on the street; that Brown jumped on the step to the front platform, and in answer to a question of the driver said he was going down town, whereupon the driver told him to get in the car; that Brown opened the gate, stepped in on the platform, and then out and off; that at this moment O'Neil got on the step, and immediately slipped and fell under the car; that the driver did not speak to him, and only observed his presence when he fell. Two policemen arrested the driver and conductor, and took them to the station. Persons present then carried the boy to the house of Mr. Keating, a distance of 50 or 75 feet, where a cot was provided for him. After he had been placed upon it, he stated to Mr. Keating, in answer to questions as to where he lived, and how he got hurt, that he got on the step of the car, and the driver kicked him off. These statements were made 5 or 8 minutes after the accident. Dr. Miller arrived within 15 or 20 minutes, and he interrogated the boy as to how he got hurt, and in answer the boy said he was on the front platform of the car; that he attempted to get off, and the driver kicked him off, and he fell under the car. These statements were detailed in evidence by Mr. Keating, his daughter, and Dr. Miller, and the question is whether they are a part of the res gestæ.

In Harriman v Stowe, 57 Mo. 93, the plaintiff was injured about noon. Her physician called between 1 and 4 o'clock of the same day, when she stated to him how she got hurt, namely, by falling through a trap-door. This statement the physician related on the witness stand, and this court held the evidence competent, because part of the res gestæ saying that the declaration and accident formed connecting circumstances. That case, it is argued by the plaintiff, goes far enough to admit the declarations made in the present case.

The case of Brownell v. Railroad Co., 47 Mo. 240, was a suit instituted to recover damages for the death of the plaintiff's husband. There the declaration of Brownell, in reference to the switch, it is said "grew directly out of, and was made immediately after, the happening of the fact," and it was held that the declaration was competent evidence for the plaintiff. That case cites with approval Insurance Co. v. Mosley, 8 Wall. 397, which was an action on a policy of insurance. To show that the death of the insured was caused by an accident, the wife testified that her husband left his bed between 12 and 1 o'clock; that when he came back, he said he had fallen down the back stairs, and almost killed himself. The evidence of the son was to the same effect. He also testified further, that on the day after the fall his father said he felt badly, etc. This evidence was held to be competent for two purposes: First, to show bodily injuries and pain; and, second, to prove that deceased fell down the stairs. In respect of the first it is said such evidence must relate to the present, and not to the past. Anything in the nature of narration must be excluded. As to the second, it is said, in substance, that generally the declarations must be contemporaneous with the event, yet the rule is not of universal application. Further on it is said: "Here the principal fact is the bodily injury. The res gestæ are the statements of the cause made by the assured almost contemporaneously with its occurrence, and those relating to the consequences made while the latter subsisted and were in progress." That court, as well as this, in the cases last cited, quote approvingly from Railroad Co. v. Coyle, 55 Pa. St. 402, where a peddler's wagon was struck and injured by a locomotive. The court said: "We cannot say that the declaration of the engineer was not a part of the res gestæ. It was made at the time, in view of the goods strewn along the road by the breaking up of the boxes, and seems to have grown directly out of and immediately after the happening of the fact."

Adams v. Railroad Co., 74 Mo. 553, was an action by the plaintiff to recover damages for the death of her husband. Plaintiff proved by one witness that after the deceased was struck, and after the train had stopped, two trainmen, whom the witness took...