Ohio & Mississippi Railway Co. v. Stein

• Decision Date: 14 May 1892
• Docket Number: 15,655
• Citation: 31 N.E. 180,133 Ind. 243
• Court: Indiana Supreme Court
• Parties: The Ohio & Mississippi Railway Company v. Stein

31 N.E. 180

133 Ind. 243

The Ohio & Mississippi Railway Company v. Stein

No. 15,655

Supreme Court of Indiana

May 14, 1892

Reported at: 133 Ind. 243 at 256.

From the Jefferson Circuit Court.

Judgment reversed.

J McGregor, W. R. Johnston, H. D. McMullen, W. M. Ramsey, L Maxwell and R. Ramsey, for appellant.

L. Dixon, A. G. Smith, C. A. Korbly and W. O. Ford, for appellee.

OPINION

Elliott, C. J.

The appellee seeks to recover damages against his employer, the appellant, for injuries alleged to have resulted to him from the negligence of the employer in failing to furnish him with safe appliances for use in the performance of the duty required of him by the service in which he was employed. The injury resulted from the collision of the car upon which the appellee was performing the duties of a brakeman, with another part of the same train, which had been detached for the purpose of making what is commonly called "a running switch." The car upon which the appellee was a brakeman was a platform car, laden with large and heavy blocks of stone, and the appellee was at the front end of the car endeavoring to check it by using the brake. Discovering that he was unable to do so, and that a collision was inevitable, he attempted to make his way to the rear of the car, but his feet were caught between two heavy stones and crushed. In the first paragraph of the complaint it is alleged that the accident was caused by the negligence of the appellant in failing to repair a cylinder-cock of the engine, which had been blown out some time before the accident, and that the failure to replace the cylinder-cock rendered it impossible for the engineer to get that part of the train which the car on which the appellee was standing was following, out of the way, and this brought on the collision. The second paragraph of the complaint charges that the brake on the car was defective, and substantially repeats the allegations of the first as to appellant's negligence in failing to replace or repair the cylinder-cock of the engine. The third paragraph is based upon the negligence of the appellant in regard to the brake, but it also alleges that there was some defect in the engine which was unknown to the appellee. As no question is made upon the complaint, we have given only a general outline of its allegations, which are full and explicit.

The question to which the appellant's counsel devote the principal part of their argument arises on the ruling of the trial court in permitting the appellee to give in evidence the declarations of the engineer in charge of the locomotive which was drawing the train on which the appellee was acting as a brakeman. The appellee's counsel argue with earnestness that, even if there was error in admitting the evidence, it was harmless. This contention makes it necessary to dispose of the question as to the effect of the evidence before considering its competency; for if it was harmless, the judgment can not be reversed for admitting it, although it was incompetent. We are satisfied that if the evidence be conceded to be incompetent, the error in admitting it was not harmless.

The appellee's counsel assume that the error was a harmless one, even if the incompetency of the evidence be conceded, for the reason that the declarations of the engineer were proved by witnesses called to prove that he had made statements out of court contradicting those made by him on the witness stand. This position is untenable. The witnesses by whom the engineer was contradicted were impeaching witnesses, and their testimony went to his credibility, but it did not prove, nor tend to prove, the principal fact. Impeaching testimony goes only to the credibility of a witness, and it can not be given any force as evidence in proof or disproof of a disputed fact, except in so far as it bears upon the credibility of the witness it tends to impeach. In Seller v. Jenkins, 97 Ind. 430 (436), it was said of impeaching evidence that, "Such evidence does not tend to establish the truth of the matters embraced in the contradictory evidence; it simply goes to the credibility of the witness." Other cases assert a similar doctrine. Davis v. Hardy, 76 Ind. 272; Hicks v. Stone, 13 Minn. 434.

The position assumed by appellee's counsel that, as the facts which the declarations of the engineer tended to prove were established by other testimony, the ruling in admitting evidence of such declarations, even if erroneous, was harmless, can not be maintained. There may be cases where the facts are so fully and conclusively proved by other testimony that the appellate tribunal will not reverse the judgment because incompetent evidence to the same facts is admitted; but this is not such a case, for here the evidence was as to a material point, and it can not be justly said that the facts which the declarations tended to prove were established by uncontradicted evidence.

We can not, it is evident from what we have said, avoid a decision of the principal question upon the ground that if the evidence was incompetent it was not prejudicial. We are required to decide whether the evidence was competent, because its material character creates the presumption that it was probably prejudicial. The rule is well settled that where evidence of an influential character is erroneously allowed to go to the jury it will be presumed to have prejudiced the objecting party, and unless this presumption is rebutted, the judgment must be reversed. See authorities cited in Elliott's Appellate Procedure, section 594, note 2.

It is an elementary rule that the declarations of an agent are not admissible against the principal, unless they were made while the agent was conducting some transaction for the principal, or in a matter where the agent's act is a part of the res gestoe. If the declarations of the appellant's engineer were not part of the res gestoe, there was prejudicial error in permitting them to be given in evidence.

It can hardly be affirmed that there is a general rule which will fit all cases, for each case is dependent, in a great degree, upon particular facts. It is, perhaps, safe to declare that where the declarations of the agent are made to the person whose interests are directly involved, at the place where the transaction or occurrence happened, so near the occurrence or transaction in point of time as to be justly and reasonably regarded as a part of it, refer directly to the transaction or occurrence, and are not narratives of the past, they are ordinarily to be regarded as a part of the res gestoe. If the declarations are made at a different place, or are separated from the occurrence or transaction by such an interval of time as requires the inference or conclusion that they were not part of the act, transaction, or occurrence, then, under all the well reasoned cases, they are not a part of the res gestoe, and can not be given in evidence against the principal. There is wide diversity of opinion and stubborn conflict as to how great an interval of time must elapse between the occurrence and the declarations, in order to deprive a party of the right to give them in evidence. But we think our general statement is supported by the weight of authority. The difficulty, as we have indicated, is not so much in formulating general statements as in determining under what phase or branch of a general rule the particular case falls. That is here the difficulty; for, while we are satisfied that our general statement is correct, we have found it no easy task to determine under what branch or phase of it this case belongs.

The question as to the competency of the declarations of the engineer has two branches; for there is one branch founded on specific objections interposed to the testimony, and another upon a motion to strike out part of the testimony. It will conduce to clearness to consider each branch separately, although both depend upon the effect and application of the rule relating to the competency of evidence as part of the res gestoe.

The appellee testified as a witness in his own behalf; and, after giving an account of the collision and the manner in which he was injured, he said: "In the meantime I was getting up. I went to walk, I went to step, and when I stepped on this foot I felt that was the first time I knew I was hurt. I reached down in the dark and felt that my foot was all cut. I crawled over to the car and sat down. About that time Mr. Brumley, the engineer, came to me with his torch. I was going on like, I suppose, anybody would when he was hurt. He says: 'That is too bad, Bill.' I said: 'Yes.' He said: 'What was the matter, Bill? Didn't you understand the signal, or couldn't you get out of the road?'" At this point an objection was stated, and then followed questions and answers. Some of the questions, as indicated by the stenographer's report, were interposed by Mr. McMullen, counsel for the appellants. The statements elicited by the questions addressed to the witness are, in substance, these: From the time the collision occurred until the engineer came to the appellee was "not over a minute or two." The engineer left his engine and walked back to the car where the appellee was; the engine had "gone down the track between two and three hundred feet" ahead of the car on which the appellee was at work, but when the engineer left the engine it was about a car's length from the car on which the appellee was injured; "the engine was stopped," and, as the witness expressed it, "the collision was all over" when the engineer reached the appellee, who had at that time crawled from the end of the car to the center, and was holding his foot and moaning.

It appears from this evidence that the direct collision was over and the injury done at the...