McLeod v. Ginther's Adm'x

• Decision Date: 05 October 1882
• Citation: 4 Ky.L.Rptr. 276,80 Ky. 399
• Parties: McLeod, receiver, v. Ginther's adm'r.
• Court: Kentucky Court of Appeals

80 Ky. 399

4 Ky.L.Rptr. 276

McLeod, receiver, v. Ginther's adm'r.

Court of Appeals of Kentucky.

October 5, 1882

1. The court adheres to the doctrine laid down in Dills v. May MS. Op., April 25, 1882, that all declarations made at the same time the main fact under consideration takes place and which are so connected with it as to illustrate its character, are admissible as original evidence, being a part of the res gestæ or a part of the thing done.

2. The declarations of Fish, the engineer, were made at the time of the collision or a few moments afterwards, when there was no time to contrive or devise a falsehood, and during the search for the victims of the accident. They are a part of the res gestæ , and competent as original evidence in the case.

3. The General Statutes, chapter 57, section 3, gives a cause of action to the widow of decedent for the willful neglect of the company, or its agents and employé s, which resulted in his death, although he was an employé of the company.

4. It is not material whether declarations constituting a part of the res gestæ were uttered by one or the other of appellant's employé s.

5. Even though Fish and decedent agreed in misconstruing the dispatch which seems to have caused the collision, yet, if the language and figures contained in it were such as to mislead appellee had a cause of action.

6. The evidence was sufficient to maintain the action.

APPEAL FROM JEFFERSON CIRCUIT COURT.

W. P D. BUSH AND A. BARNETT FOR APPELLANT.

1. The declarations of Fish, " I had until 10:10, A. M., to make Beards," are not admissible or competent as a part of the res gestæ .

2. It was not made at the time the collision took place.

3. The statement was not made at the same time the instructions were given.

4. The statement was made by Fish as the agent or servant of the receiver.

5. As between Fish and Ginther and appellant, Fish was the agent of Ginther, and not the agent of the defendant, the receiver.

6. As to this matter they were equals, and bound for proper skill in understanding orders given in the usual way. (17 N.Y 131; 1 Greenleaf on Evidence, sec. 13; 4 Wend., 396; 2 Hill, 445; Story on Agency, secs. 135-'6; 10 Ves., 128; 4 Kerr, 271; 9 Gray, 243; 57 Pa. 339; 20 Wall., 528; 26 Grattan, 350; 36 Am. R., 825; 15 W.Va. 628.)

7. The statements or declarations of one co-equal fellow-servant of a railroad company are not competent as original evidence on behalf of his co-equal fellow-servant in the same service on the same train. (L. & N. R. R. Co. v. Collins, 2 Duv., 114; Ibid v. Cavans, 9 Bush, 559; Thompson on Negligence, secs. 26, 27, 38; Sherman & Redfield on Neg., secs. 86, 100, 105, 108, 109, 110; Story on Agency, secs. 183, 210, 217.)

8. The evidence did not sustain the verdict. (10 Bush, 667; 2 Duv., 577; 9 Bush, 522.)

W. LINDSAY, I. H. TRABUE, AND S. F. J. TRABUE FOR APPELLEE.

1. The exclamation of Fish was certainly made within ten seconds after the collision. Both were substantially simultaneous.

2. The declarations of a person at or immediateiy following an act in which he participates are admissible as substantive evidence, and are in the nature of verbal facts. (3 A. K. Mar., 395; 2 J. J. Mar., 384; Billings v. Sherley, 8 Bush, 154; Mockabee v. Commonwealth, 78 Ky. 380; 3 Cush. (Mass.), 181; 8 Wall., 397; 55 Penn., 402; Greenleaf, sec. 169, 11 Bush, 105; 13 Barb., 246; 5 Y. R., 512; 8 Watts, 355; 1 Key's N. Y., 390; 4 Caldwell, 161; 18 Gratt., 943; 32 Ib., 672.)

HARGIS CHIEF JUSTICE:

The petition for rehearing demonstrates that some of the principles of law laid down in the opinion were erroneously and unnecessarily applied to the facts of this case.

For the purpose of eliminating the dictum of the former opinion, which is withdrawn, and of answering new views presented by the well prepared petition for rehearing, it becomes necessary to restate the facts and law of this case, which we will do by using the language of the former opinion, so far as adhered to, and making such observations as the position now taken by counsel may require.

This was an action to recover damages for the willful neglect of the appellant's servants in sending dispatches to two conductors of trains which were to run on the same day, over the same part of its road.

The appellant denied any fault on the part of its servants in sending or wording the dispatches, and pleaded contributory negligence of the appellee's husband.

The jury, under proper instructions, found a verdict for the sum of $7,500 in favor of the appellee, and the appellant took an appeal, on which we are asked to reverse the judgment rendered in accordance with the verdict.

The dispatches were alike, and read this way:

" No. 103, I. E. R., N. Y., 4. 13:

Fish extra east; can have until ten, 10, o'clock, A. M. to make Beards for Number 2 and Number 4."

Fish, construing the dispatch to mean that he had until ten minutes after ten o'clock to reach Beards' Station, started east on an engine, with no train attached, and when in about one mile of that place, at seven minutes after ten o'clock, met and collided with train Number 2, going west, each running at the forbidden rate of near forty miles an hour, and the appellee's husband, John Ginther, and two other persons, were killed.

Fish was conductor and Ginther engineer on the engine going east.

The appellee introduced as a witness Waters, the engineer on the west bound train at the time of the collision, who testified, as shown by the following questions and answers taken from the stenographer's report of the evidence:

Questioned by plaintiff's counsel:

" Q. Who was the conductor on the train Ginther was on?

A. Mr. Fish.

Q. Did you see him?

A. Yes, sir.

Q. How long after the collision?

A. He was the first man I met.

Q. How soon was that?

A. Well, when I gathered myself together I was on the right hand side coming this way, and I saw the engines were pushing out to the left, and I went out behind the train to look for my fireman, when Mr. Fish he said--

Counsel for the defendant objects to the witness stating what Mr. Fish said. Objection overruled, to which ruling of the court the defendant excepts.

Q. What did you say to Fish and what did Fish say to you concerning the collision?

A. Well, he was the first man I met. He came up to me and commenced pulling out his watch, and says, ‘ What time have you got?’ I says, ‘ I have no time to compare time now; there is my conductor.’ He says, ‘ I had until 10:10 to make Beards.’ I says, ‘ No, you had not.’ He went on to my conductor, and that is all that passed between us at that time."

The appellant insists that the statement of Fish that " I had until 10:10 to make Beards" was incompetent, because not a part of the res gestæ .

What constitutes res gestæ is often difficult to determine, as the relationship of facts, when the thing done is composed of different agencies and actions, separated more or less in point of time and manner of performance, is not always palpable, and though necessary, may frequently be obscured by the multiplicity of particles which go to make up the main fact under consideration. (1st Greenleaf, section 108.) Hence the particular facts of each case must determine the relevancy of declarations sought to be proven as part of the act or facts constituting and legally belonging to the cause of action.

We have been cited, and still adhere to, the rule on the subject laid down in the case of Dills v. May, in which it is said: " The general rule is that all declarations made at the same time the main fact under consideration takes place, and which are so connected with it as to illustrate its character, are admissible as original evidence, being what is termed a part of the res gestæ ; in other words, a part of the thing done.'

Two things unite to constitute the cause of action in this case. First, the injury to appellee's husband; second, the acts which began with the sending of the several dispatches resulted in their misconstruction, and ended with the accident and its attendant circumstances.

Anything that was said during the time these facts took place, which was so connected with them as to illustrate their true character, belongs to the res gestæ , and may be proven as original evidence. In the case of Hanover Railroad Co. v. Coyle, 55 Penn. St., p. 402, where a peddler's wagon was struck and the peddler injured, by the negligence of the engineer, the latter's declaration, made after the infliction of the injury, was admitted as a part of the transaction itself, the court saying:

" We cannot say that the declaration of the engineer was no part of the res gestæ . It was made at the time--in view of the goods strewn along the road by the breaking up

...