New York, Chicago & St. Louis Rd. Co. v. Kovatch

• Decision Date: 01 May 1929
• Docket Number: 21272
• Parties: The New York, Chicago & St. Louis Rd. Co. v. Kovatch, Admr.
• Court: Ohio Supreme Court

166 N.E. 682

120 Ohio St. 532

The New York, Chicago & St. Louis Rd. Co. v. Kovatch, Admr.

No. 21272

Supreme Court of Ohio

May 1, 1929

Evidence - Res gestae - Evidence that unidentified child screamed "The engine runned over David," admissible when.

When the issue upon the trial is the question whether a child has been killed upon a public street by the engine of a railway and there is some evidence to show that an unidentified child screamed immediately after the accident that "The engine runned over David," and there is evidence which justifies the inference that a child was standing at the time of the accident at a point where she could have observed the accident, it is not reversible error to refuse to include the testimony.

The facts are stated in the opinion.

Messrs Tolles, Hogsett & Ginn, for plaintiff in error.

Mr Harry F. Pattie, for defendant in error.

ALLEN J.

This case arises upon a proceeding in error to review a judgment of the Court of Appeals of Cuyahoga county, Ohio, which affirmed a judgment of the court of common pleas of that county. The case arose out of a crossing accident upon Woodland avenue, in Cleveland, in which David Kovatch, aged nine years, was killed when a freight train was crossing the avenue. The crossing gates were up at the time, due to the fact that the city of Cleveland was excavating for a sewer and the gates could not be operated. It was the theory of the defendant railway company that plaintiff's decedent was playing with a wire alongside the moving train, that he tapped the wheels of the passing freight cars, and in some manner was caught by the wire and dragged beneath the wheels of the train. It was the theory of the plaintiff administrator that the decedent was struck by the locomotive while attempting to cross the track, and that the locomotive was crossing Woodland avenue negligently, in violation of law, at a speed prohibited by the city ordinance, and without ringing of bell or sounding of the whistle.

There was a sharp conflict in the testimony, and evidence was adduced on both sides tending to prove each of the respective theories. An eye-witness testified that "the engine struck David," and testimony of one other eye-witness was adduced tending to establish the same fact. We do not discuss this feature of the case, because of the fact that evidence was adduced sustaining every feature of the verdict in favor of the administrator.

The legal question of moment is presented by the admission of certain testimony given at the trial by Calvin Kovatch, the administrator and brother of the decedent. Kovatch stated that at the time of the accident he was sitting on his front porch upon Eighty-Seventh street, some 150 feet away from the scene of the accident. He was asked what first attracted his attention, and he said, "I heard a little girl scream, `The engine runned over David.'" After certain objections which are not material because the evidence was later admitted the following questions and answers were given:

"Q. When you heard the scream, what did you do, first? A. I looked up, and I saw the engine, just crossing over Woodland Avenue just across Woodland. * * *

"Q. Then, as you looked up - as you heard the scream and looked up and saw the engine, then what did you do? A. I ran out on Woodland Avenue, ran out to Woodland.

"Q. You ran out to Woodland Avenue? And when you got out to Woodland Avenue, what did you observe? A. I saw this derailer man bringing my brother from the railroad, in his arms. * * *

"Q. You saw the little girl, did you? A. Yes, I saw the little girl.

"Q. Could you judge about how old she was? A. About 5 years old.

"Q. Do you know who she was, at all? A. No. I don't.

"Q. Now, where was the little girl standing, when you heard the scream? * * *

"The Court: Well, did you see her, at the time she screamed?

"The Witness: No. I did not see her at the time she screamed.

"The Court: Did you see her afterward?

"The Witness: After I got out to Woodland - started out 87th street, I saw her on the corner."

Thereafter the following question was asked:

"Q. Now, getting back to the scream that first attracted your attention, I will ask you what you heard the little girl say? * * *

"A. The little girl said, `The engine runned over David.'"

Exceptions were duly saved to the admission of this testimony, and therefore the direct question confronting us is whether the exclamation of the "little girl" was admissible as part of the res gestae.

As laid down by Wigmore (3 Wigmore on Evidence [2d Ed.], Section 1750), such declarations are admissible only under the following circumstances:

"(a) Nature of the occasion. There must be some shock, startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting. * * *

"(b) Time of the utterance. The utterance must have been before there has been time to contrive and misrepresent, i. e. while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance. This limitation is in practice the subject of most of the rulings. * * *

"(c) Subject of the utterance. The utterance must relate to the circumstances of the occurrence preceding it."

"Upon the ordinary principle applicable to all testimonial evidence, * * * and therefore to Hearsay statements offered under these Exceptions, * * * the declarant must appear to have had an opportunity to observe personally the matter of which he speaks. This requirement is in practice usually fulfilled in the case of all declarations otherwise admissible; for they are made by injured persons or others present and concern the circumstances of the injury as observed by them; and thus no occasion arises for calling attention to the requirement. Nevertheless, in an appropriate case, it would without doubt be enforced; for example, if a passenger in a railroad collision should exclaim, `The engineer did not reverse the lever,' or `The conductor did not read the train-despatcher's orders.'" Wigmore, Section 1751.

Relying upon this authority, plaintiff in error claims that this admission of the "little girl's" exclamation constituted prejudicial error. If the statement was incorrectly permitted to go to the jury, there is no doubt that it was prejudicial, for the sharp conflict in the testimony with regard to whether the engine struck David, or whether after the engine had passed David tapped the wheels of the cars with a wire, and hence was drawn into their mechanism by his own negligence, made this statement of the "little girl" have vital bearing upon the major question of fact in the case.

The third paragraph of the syllabus in the case of State v. Lasecki, 90 Ohio St. 10, 106 N.E. , 660, L.R.A., 1915E, 202, Ann.Cas., 1916C, 1182, reads as follows:

"The doctrine of res gestae, as applied to exclamations, should have its limits determined, not by the strict meaning of the word `contemporaneous,' but rather by the causal, logical or psychological relation of such exclamations with the primary facts in controversy."

The record shows that there was a shock startling enough to produce a spontaneous utterance. Furthermore, the utterance does relate to the circumstances of the accident. Was the declaration, however, a narrative statement rather than a spontaneous exclamation, uttered while nervous excitement still dominated the little girl? In other words, what was the causal, logical, or psychological relation of the exclamation to the primary facts in controversy? To decide this question the time of the utterance is of the greatest moment. The testimony of the administrator was that he first heard the little girl scream, "The engine runned...