Panhandle & S. F. Ry. Co. v. Huckabee

• Decision Date: 11 December 1918
• Docket Number: (No. 1436.)
• Citation: 207 S.W. 329
• Parties: PANHANDLE & S. F. RY. CO. v. HUCKABEE et ux.
• Court: Texas Court of Appeals

207 S.W. 329

PANHANDLE & S. F. RY. CO. v. HUCKABEE et ux.

(No. 1436.)

Court of Civil Appeals of Texas. Amarillo.

December 11, 1918.

Appeal from District Court, Floyd County; R. C. Joiner, Judge.

Action by W. A. Huckabee and wife against the Panhandle & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Madden, Trulove, Ryburn & Pipkin, of Amarillo, for appellant.

T. F. Houghton, of Floydada, for appellees.

BOYCE, J.

This suit was brought by appellants, W. A. Huckabee and wife, against appellant railway company, for damages on account of the death of their son, Wesley Huckabee, a young man 23 years old, and living with his parents at the time of his death. The petition alleged that the appellant company negligently constructed and maintained a certain crossing of a public road over its tracks, in the town of Floydada; that the said Wesley Huckabee drove a wagon loaded with lumber onto said crossing, and on account of the swaying and jolting of the wagon, caused by the rough condition of said crossing, one of the standards which retained the lumber on the wagon broke so that part of the lumber fell off, which frightened the team and caused them to run away; that the said Wesley Huckabee fell under the wagon, was run over, and sustained the injuries from which he died. We will make such statement of facts as are necessary in the discussion of the assignments.

It is undisputed that such an accident did occur at or near the crossing, as stated, though it was in issue as to whether this was the result of the condition of the crossing. As a material part of the evidence tending to establish the fact that the accident was caused by the condition of the crossing, the father, W. A. Huckabee, was permitted to testify that when he reached the bedside of his son, about 1½ hours after the accident, he asked his son how the accident happened, and that —

"He told me in crossing the first track on the railroad here, he said when the left hind wheel dropped off the second rail, the front standard broke, and the lumber slid off, and that scared the mules, and he tried and he couldn't hold them, and he said, either that the mules knocked him under it or the lumber knocked him under the wagon, and he didn't know which, and then the wagon ran over him, and, of course, the mules went on."

It is urged that this testimony was inadmissible as being hearsay and not part of the res gestæ. In order to determine whether this objection is well taken, it is necessary to set out the facts surrounding the accident and transpiring in the interim intervening up to the time when the statement was made. Several persons arrived at the scene of the accident within a very short space of time thereafter. Wesley Huckabee was then conscious, stated that he was "broke all to pieces," and asked some of those present to notify his parents. At this time he stated that "the standard broke, and I thought I could hold them, but stumbled over a bunch of shingles and fell," no statement being made as to the cause of the standard breaking. A physician soon arrived, and he was taken to a sanitarium in the town, and said physician testified that —

He "found a simple fracture of the thigh. We straightened them out and put on a modified Buck's extension, and put him to bed. He was not complaining of any other injuries then."

The family lived about 8½ miles in the country, and the father reached the sanitarium in about 1½ hours, whereupon the statement above referred to was made. No other evidence was offered as to the mental or physical condition of the said Wesley Huckabee between the time of the accident and up to the time the statement was made, nor is it shown whether he was suffering much pain, and what, if anything, had been done to alleviate it. Neither does it appear whether this conversation with the father occurred before or after the physician had completed his operations in caring for the fractured thigh. Some time after, just when does not appear clearly from the evidence, it was discovered that the said Wesley Huckabee was in a stupor, in which condition he remained for 86 hours, when he died. The physician stated that the stupor and death were the result of concussion of the brain, but that he "did not make any examination of the head of the deceased; he was not complaining of anything at all wrong with his head, and I just did not think of it."

The testimony referred to would, of course, ordinarily be considered as hearsay, and the party offering it ought to make it reasonably appear that it came within some of the exceptions to the general rule against hearsay testimony before it would be admissible. It is claimed in behalf of its admission here that it is a part of the res gestæ, and for this reason admissible. Much has been written on this subject. Bouvier's Law Dictionary, "Res Gestæ"; Words and Phrases, Original and Supplemental Editions, "Res Gestæ"; Greenleaf on Evidence, §§ 108 to 114; Wigmore on Evidence, 1745 to 1757; R. C. L. vol. 10, pp. 987-989. We had occasion recently, in the case of Dallas Hotel Co. v. Fox, 196 S. W. 652, to consider a question very similar to the one now before us, and full citation of the Texas authorities will be found in the opinion in that case. One of the most satisfactory statements of the rule, the reasons therefor, and the test to be applied to determine whether a particular case comes within it, as applicable to the present case, is to be found in Wigmore on Evidence. Declarations of the kind we are considering are treated by this author as genuine exceptions to the hearsay rule (section 1746), and, as the writer does not feel that he can improve the statement made by Prof. Wigmore, we here quote it as being a fair statement of this phase of the law:

"This general principle (of the exception) is based on the experience that under certain external circumstances of physical shock a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external...