Murray v. Boston & M. R. R.

• Decision Date: 03 February 1903
• Citation: 72 N.H. 32,54 A. 289
• Parties: MURRAY v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

54 A. 289

72 N.H. 32

MURRAY

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Hillsborough.

Feb. 3, 1903.

Exceptions from Superior Court; Young, Judge.

Action by Michael Murray, administrator, against the Boston & Maine Railroad. Verdict for plaintiff. Defendant excepts. Exception overruled.

Case, for negligently causing the death of Baker, the plaintiff's intestate. Trial by jury, and verdict for the plaintiff. At the close of the plaintiff's evidence, the defendant's motion for a nonsuit was denied, subject to exception. Transferred from the May term, 1902, of the superior court by Young, J. The plaintiff's evidence tended to prove the following facts: At the time of the accident, and for some time prior thereto, Baker was in the employ of the defendant as a freight brakeman. The crew to which he belonged had no regular run, but worked on extras on the lines of the defendant's road running out of Nashua. During the two months before the accident, they had been over the road from Nashua to Keene about a dozen times. The accident occurred in the yard at Greenfield, at about 2 o'clock in the morning, while the crew were engaged in making up their train. Baker was the "middle man," and it was his duty to throw a switch after certain loaded coal cars had been drawn from a side track upon the main track. While the cars were in motion, some one with a lantern was seen by one of the men on the car next to the rear one, and when nearly opposite the switch the lantern disappeared, going down by the side of the car, on the side of the track opposite the switch. On this side of the track there was a "jigger stand," about six feet from the switch, consisting of two planks placed at right angles with the track, and within two or three inches of it and extending back some fifteen feet. Such appliances are used by the section men in running their cars from the track. There was no car house at this point, and the stand had not been used for two or three years. Just after the lantern disappeared, and as soon as the car passed the switch and stopped, Baker was heard to cry out and groan; and one of the witnesses at once ran to him, and found him lying between the planks, his back to the track, with both legs nearly severed from his body. Another witnesses, who reached the place in less than two minutes after he heard the outcry, asked Baker what the matter was, and he replied that he had lost his legs. The witness asked, "How did you do that?" and Baker replied, "I fell over these old planks." This testimony was admitted, subject to the defendant's exception. Baker died in a few hours thereafter. The broken pieces of his lantern were found near him between the planks, and there was blood on the rail at the end of the planks, and on one of the car wheels. Jigger stands are of frequent occurrence on the defendant's various roads on which Baker had worked, but in a great majority of cases they are opposite car houses, and not in the immediate vicinity of switches. One of the trainmen who worked with Baker testified that he had not noticed this jigger stand before the accident. It did not appear whether Baker had ever operated this switch, or whether he had ever got off his car at this point on the side where the stand was. The stand had been there from seven to ten years. It appeared that some years ago Baker went over the road as brakeman a large number of times, but had not worked there in recent years until about two months before the accident.

Doyle & Lucier, for plaintiff.

Hamblett & Spring and Burns & Burns, for defendant.

WALKER, J. It is claimed that Baker's statement, made directly after the infliction of his injury, was not admissible. If the declaration was merely a narrative of a past event, the evidence of it would be inadmissible, upon the ground that ordinarily hearsay evidence is not received in proof of the truth of an assertion. The uniform practice of the courts in common-law jurisdictions lias resulted in the establishment of this principle, as a necessary and useful rule in the investigation of questions of fact. But when the declaration of one not a sworn witness upon the trial is something more than mere narrative—when its probative force is derived in part, at least, from sources other than the credibility of the declarant—an opportunity is afforded for the argument that it does not fall within the strict rule against hearsay evidence, or that it constitutes an exception to the rule. It is then possible to say that the declaration, while verbally a mere narrative, is something more, and may be, for that reason, of such probative force as to be admissible as evidence upon a material issue. It may be so connected with other controverted facts as to be itself a fact or circumstance naturally growing out of, and in some sense attested by, them. The verbal statement of a person made under some circumstances may be a part of the actual occurrence, and be entitled to as much weight as evidence as any other part of the transaction. This is the principle, it is believed, that is involved in the somewhat obscure doctrine of res gestae, which is often resorted to, apparently, more on account of its convenient indefiniteness than for its scientific precision. But the principle, whether expressed in an abbreviated Latin phrase or otherwise, is an important one in any system of evidence whose object is the ascertainment of facts. Its development has been promoted, in modern times, by an effort to afford the triors of fact all reasonable means of ascertaining the truth, instead of withholding from them all information possible by the rigid application of certain rules of exclusion. The question is not now, how little, but how much, logically competent proof is admissible?

In cases of this character it is important to ascertain what, if any, relevancy the declaration has—in other words, what it tends to prove; for unless its natural effect is to prove or explain a point in issue or a controverted fact, it is not admissible. In this case the burden was upon the plaintiff to establish, by a balance of the probabilities, that his intestate received his injury in consequence of the negligence of the defendant. This, in a broad general sense, was the issue tried; but it involved a material inquiry as to the manner in which the accident happened. If it is assumed that suffering the planks to be where it is admitted they were was a negligent act of the defendant, it was Important for the plaintiff to show that they were the proximate or effective cause of the accident. If, in the exercise of due care, the deceased would not have received the injury complained of but for the existence of the planks at that particular place and time, the plaintiff would have sustained the burden assumed by him. On the other hand, if the cause of the accident was something other than the planks, as manifestly might have been the case, his failure in this respect might have been fatal. Nashua Iron & Steel Co. v. Railroad, 62 N. H. 159. The controversy was whether the planks caused the deceased to stumble and fall, and thus to suffer the injury inflicted upon him by the car wheel running over his legs. The plaintiff's evidence was that the deceased was found almost immediately after the accident lying between the planks, with his legs practically severed from his body; that the fragments of his broken lantern were on the ground near him; and that blood and bits of flesh were found upon the car wheel and near the planks. These are all physical facts which, as evidence, afford some information as to how the accident happened. They are relevant details or results of the main fact. In the strictest sense, they may not together constitute or fully evidence the fact in controversy; but in law they are said to be a part of it. The admission of evidence of this character is placed upon the ground that it discloses to the jury the facts and circumstances which attended the principal fact. In a not inappropriate sense, they are a part of the res gestae, and exist as evidence of it. Willis v. Quimby, 31 N. H. 485; Tucker v. Peaslee, 36 N. H. 167, 181; Wyman v. Perkins, 39 N. H. 218; Willey v. Portsmouth, 64 N. H. 214, 219, 9 Atl. 220.

When, instead of attendant physical facts and circumstances, the evidence consists of a declaration, made by a person at the time of the event or transaction which is under investigation, its admission depends upon a similar principle. If its materiality or relevancy is conceded, the question whether it is a part of the res gestæ arises; that is, whether it occurred in such intimate connection with the event in issue as to constitute it in a reasonable and proper sense a part thereof. If it does, it is, in its probative bearing, superior to mere hearsay remarks, and may, for that reason, be admissible. "its connection with the act gives the declaration greater importance than what is due to the mere assertion of a fact by a stranger, or a declaration by the party himself at another time. It is a part of the transaction, and may be given in evidence in the same manner as any other fact." Hadley v. Carter, 8 N. H. 40, 43. "Where evidence of an act done by a party is admissible, his declarations, made at the time, having a tendency to elucidate or give a character to the act, and which may derive a degree of credit from the act itself, are also admissible, as a part of the res gestae." Sessions v. Little, 9 N. H. 271, 276.

After approving the statement quoted above from Hadley v. Carter, the court, in Wiggin v. Plumer, 31 N. H. 251, 267, state the principle as follows: "When a fact is offered in evidence, the whole transaction, if it consists of many particulars, may and ought to be proved. Every additional circumstance proved may vary the effect of the evidence, may neutralize it, or give it point. What is then said by the parties, and what is said by others to them, relative to the subject of the transaction, is...