Little Rock, M.R. & T.R. Co. v. Leverett

• Decision Date: 05 February 1887
• Citation: 3 S.W. 50,48 Ark. 333
• Parties: L. R., M. R. & T. RY. CO. v. LEVERETT, ADMR
• Court: Arkansas Supreme Court

3 S.W. 50

48 Ark. 333

L. R., M. R. & T. RY. CO. v. LEVERETT, ADMR

Supreme Court of Arkansas

February 5, 1887

APPEAL from Desha Circuit Court, Hon. J. A. WILLIAMS, Judge.

Judgment affirmed.

J. M Moore, for appellant.

1. The declarations of the deceased as to the manner in which he was injured were not competent. 2 Ark. 246; 97 Ill. 101; 24 Kan 189.

They were not admissible as part of the res gestae. 8 Wall. 397; 30 Vt. 377 47; ib., 583; 8 Conn. 263; 3 ib., 250; 41 ib., 55; 128 Mass. 422; 95 N.Y. 774.

2. The exclusion of evidence as to regulations on other railroads in regard to coupling, was error.

3. The pecuniary condition of the mother, her poverty or wealth could not be taken into consideration in assessing damages under the statute, and evidence thereof was clearly inadmissible. 102 U.S. 451; 2 Thomps. on Negl., 1290-1; 3 Wood's Ry. Law, sec. 413.

4. An employe who knows, or by the exercise of reasonable diligence might know, of the existence of defects in the machinery or appliances with which he is to work, cannot recover for an injury caused by such defects. He is held to have assumed the risk. 39 Ark. 38; 41 Ark. 542; 27 Minn. 137; 25 N.Y. 562; 20 Mich. 114; 63 N.Y. 452; 9 Exch., 223; 2 Thomp. on Negl., 1008, sec. 15 and note 3; 16 Q. B., 326; 3 Wood's Ry. Law, 1153-4.

"The servant, in order to recover for defects in the appliances of the business, is called upon to establish three propositions:

"1. That the appliance was defective.

"2. That the master had notice thereof, or knowledge, or ought to have known.

"3. That the servant did not know of the defect, and had not equial means of knowing with the master." Ib., 1492.

The eighth and ninth instructions by defendant should have been given. If the track was not ballasted and was in bad condition, and these facts were known to deceased it was imprudent and negligent in him to enter between the cars for the purpose of uncoupling them while the train was in motion. 6 Am. and Eng., Ry. Cases, 160-1; 39 Iowa 615; 43 ib., 396; 56 Ga. 274; 58 ib., 112.

X. J. Pindall and B. F. Grace, for appellee.

1. The declarations of deceased were part of the res gestae and properly admitted. 8 Wall, 397; 15 A. and E., 291; 80 Ky. 399; 72 Ga. 217; 53 Am. Rep., 838.

2. The evidence of Marshall properly excluded. An employe is not bound by a rule of the company not brought to his attention, or which it has habitually neglected to enforce. 11 Am. and E. Rep. , 193; 12 A. and E., 223.

3. Evidence as to the condition of the mother, as to her means and dependency on the son for support, were properly admitted. 19 A. and E. Rep., 173; 28 Minn. 103; 30 ib., 126; 4 Bliss, 430.

4. It is admitted that the road-bed was in bad condition, but it is contended that if deceased had an opportunity to know the condition of the road he cannot recover. The evidence shows he had no such knowledge, nor the means of such knowledge.

Plaintiff's instructions one, two and three are supported by 11 A. and E. Rep., 175-8-9; ib., 190-1; ib., 199; Pierce on R. R., 370; 4 F. 277; 61 Ala. 556; 73 N.Y. 40; 59 Ala. 246; 44 Md. 284; 15 A. and E., 300-1-2; 135 Mass. 575; 1 Thomp. Neg., 541, 582.

The fourth is supported by 11 A. and E., 193-4-5, 301.

As to measures of damages. 39 Ark. 509; 9 A. and E. R. Cases, 368; 33 Ark. 368; 15 A. and E. R. Cases, 286. As to contributory negligence, see Wharton on Neg., sec. 211-12; 100 U.S. 213; 15 A. and E. R. Cases, 265.

Courts are averse to setting aside verdicts because excessive. 7 Kan. 380; 42 Miss. 607; 16 Kan. 356; 19 Barb., 461; 15 Minn. 49; 51 Ga. 582; 45 ib., 288; 37 Mo. 240; 36 Miss. 660; 12 Barb., 492; 51 Ill. 333; 57 ib., 265.

OPINION

BATTLE, J.

This was an action brought by Sallie L. Leverett, as administratrix of the estate of James W. Leverett, deceased, against the Little Rock, Mississippi River and Texas Railway Company, to recover damages alleged to have resulted from the negligence of the defendant in wrongfully causing the death of the deceased. The action was brought under section 5226 of Mansfield's Digest, to recover damages for the benefit of the next of kin of the deceased.

The negligence averred is, that defendant's road-bed, tracks and station at the town of Arkansas City were constructed on a high embankment, with a narrow and insufficient crown, and steep, slippery and insufficient slopes; that the cross-ties placed on the embankment extended over the sides of the embankment; that there was no walk-way for switchmen to walk or stand upon when in the necessary discharge of their duties in coupling and uncoupling cars; and that the road-bed at this place was not sufficiently ballasted or surfaced up. It is averred that the deceased was employed by defendant as a switchman in the yard at this station, and was engaged as a switchman in the yard at this station, and was engaged on the night of the 12th of January, 1883, in the line of his duty, in uncoupling cars, and that while so engaged one of his feet slipped between the ties and was caught, and before he could extricate it he was run over by defendant's cars and killed. That the deceased had then been recently employed by defendant and was ignorant of the dangerous and defective construction of the embankment, road- bed and tracks on which he was engaged at the time he was killed, and that his death was the result of the negligence of defendant in constructing its road-bed and tracks in the manner stated.

On a trial in the circuit court, plaintiff recovered a judgment for $ 3500, and defendant appealed to this court.

It is first insisted that the circuit court erred in admitting evidence of the declarations of the deceased as to the manner in which he was injured. Thomas Leverett, a brother of the deceased, testified that he heard a noise on the railroad and immediately went over and found the deceased under the car, lying partly on the rails, between the track, trying to get out, but could not do so, being unable to move his legs; and he asked him how he was caught, and that deceased told him he had stepped in between the cars to uncouple them; that the pin was tight and he stepped out and signaled the engineer to back up to loosen the pin, and that he then stepped in between the cars to uncouple them, and as he did so, he stepped between the ties and his feet slipped, and before he could recover, his foot was caught against the tie by the brakeam and he was thrown down. This statement was made by the deceased while he was under the car and in the condition found by his brother.

Appellant insists that this statement was incompetent evidence, because it was not a part of the res gestae.

Wharton says: "The res gestae may be defined as those circumstances which are the undesigned incidents of a particular litigated act, and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. They may consist of speeches of any one concerned, whether participant or bystander; they may comprise things left undone as well as things done. The sole distinguishing feature is that they should be the necessary incidents of the litigated act; necessary, in this sense, that they are part of the immediate preparations for, or emanations of, such act, and are not produced by the calculated policy of the actors. In other words, they must stand in immediate causal relation to the act--a relation not broken by the interposition of voluntary individual wariness, seeking to manufacture evidence for itself. Incidents that are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become in this way evidence of the character of the act. * * * Therefore, declarations which are the immediate accompaniments of an act are admissible as a part of the res gestae; remembering that immediateness is tested by closeness, not of time, but by causal relation as just explained." Wharton on Evidence, secs. 258, 267, and authorities cited.

In Clinton v. Estes, 20 Ark. 216, it is said: "It may be difficult to determine at all times, when declarations shall be received as a part of the res gestae. But when they explain and illustrate it, they are clearly admissible. Mere narratives of past events, having no necessary connection with the act done, would not tend to explain it. But the declaration may properly refer to a past event as the true reason of the present conduct."

In Carr v. The State, 43 Ark. 99, in speaking of what declarations constitute a part of the res gestae, the court said: "Nor need any such declarations be strictly coincident as to time, if they are generated by an excited feeling which extends without break or let down from the moment of the event they illustrate. But they must stand in immediate causal relation to the act, and become part either of the action immediately preceding it, or of the action which it immedately precedes." Again, in Flynn v. State, 43 Ark. 289, it is said: "It often becomes difficult to determine when declarations shall be received as part of the res gestae. In cases like this, words uttered during the continuance of the main action, or so soon thereafter as to preclude the hypothesis of concoction or premeditation, whether by the active or passive party, become a part of the transaction itself, and if they are relevant, may be proved as any other fact, without calling the party who uttered them."

In Commonwealth v. Hackett, 2 Allen, 136, upon a trial for murder, a witness testified that at the moment the fatal stabs were given he heard the victim cry out "I am stabbed," and he at once went to him and reached him within twenty seconds after that, and then heard him say: "I am stabbed--I am gone--Dave Hackett has...