Pledger v. Chicago, Burlington & Quincy Railroad Company

• Citation: 95 N.W. 1057,69 Neb. 456
• Decision Date: 18 June 1903
• Docket Number: 12,876
• Parties: CLIFTON F. PLEDGER, NEXT FRIEND TO GROVER C. PLEDGER, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY
• Court: Supreme Court of Nebraska

95 N.W. 1057

69 Neb. 456

CLIFTON F. PLEDGER, NEXT FRIEND TO GROVER C. PLEDGER, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY

No. 12,876

Supreme Court of Nebraska

June 18, 1903

ERROR to the district court for Kearney county: ED L. ADAMS DISTRICT JUDGE. Affirmed.

AFFIRMED.

George A. Adams, Lewis C. Paulson and E. C. Dailey, for plaintiff in error.

Webster S. Morlan, John L. McPheely, J. W. Deweese and Frank E Bishop, contra.

ALBERT C. BARNES and GLANVILLE, CC., concur.

OPINION

ALBERT, C.

This action was brought by the next friend of Grover C. Pledger, whom we shall hereafter call the plaintiff, to recover damages for personal injuries alleged to have been sustained by the plaintiff by the wrongful acts of the defendant.

The petition alleges that on the 24th day of August, 1900, the plaintiff boarded one of the defendant's trains at Hastings, intending to go to the state of Colorado; "that after said train started from the station in the city of Minden, and while the same was in motion and in said city and county, the said Grover C. Pledger was standing on the back end of one of said coaches, when, without any warning whatever, the defendant's employee in uniform, being a brakeman or other employee of defendant in and about said train, violently pushed the said Grover C. Pledger off said moving train, into a pile of cinders with sloping sides, negligently and carelessly, by the defendant and its employees, placed and suffered to remain piled up along and parallel with the defendant's track and in close proximity to said track, causing him to fall on the sloping side of said cinder pile and under said moving train, which train ran upon and over the right leg of said Grover C. Pledger, crushing and mangling the same, necessitating an amputation of said right leg about five inches below the knee, thereby permanently injuring and crippling said Grover C. Pledger for life, all without any fault or negligence upon the part of said Grover C. Pledger." The damages are laid at $ 15,000.

The answer, in effect, admits that the plaintiff sustained the injury alleged in the petition, but alleges that it was occasioned by the misconduct, carelessness and negligence of the plaintiff and without any fault or negligence on the part of the defendant. It appears from the evidence that the plaintiff boarded the defendant's train at Hastings and concealed himself on the front platform of the first passenger car, to avoid paying his fare. He thus rode until the train reached Minden, which was about 9:30 P. M., when the accident occurred. As the train upon which he had been riding was leaving Minden, he was found lying beside the railroad track, with one of his legs so mangled that it was necessary to amputate it below the knee. Whether the accident was the result of his being pushed from the train by one of the defendant's employees, was the principal question of fact in the case. One theory of the defense was that the plaintiff had left the train at Minden and was trying to board it again while it was in motion, intending to conceal himself as before. The jury returned a verdict for the defendant, and the plaintiff brings error.

The plaintiff was present at the trial and took the stand as a witness on his own behalf. He testified that the accident was the result of his being thrown from the train by one of the defendant's employees. He then offered to prove by three different witnesses that they arrived at the place where he was lying, not exceeding a minute after the accident occurred, that they heard exclamations of pain and that someone asked the plaintiff: "Were you on that train?" And he responded: "Yes, and the brakeman pushed me off, and I believe my foot is cut off." This evidence was excluded on the ground that the declarations of the plaintiff, at that time, were no part of the res gestae and the ruling of the court in that behalf is now assigned as error.

It would unduly extend this opinion to attempt a review of the authorities on the question of the admissibility in evidence of declarations as a part of the res gestae. The leading authorities on this question are reviewed in 1 Rice, Evidence, 362, et seq. A large number may also be found in the note to People v. Vernon, 35 Cal. 49, 95 Am. Dec. 49. From the numerous and conflicting authorities this court has deduced two rules, which appear to us sufficient for present purposes. In Union P. R. Co. v. Elliott, 54 Neb. 299, 74 N.W. 627, the rule is thus stated by commissioner RAGAN, and approved by this court:

"A declaration or admission, to be competent evidence as res gestae, must be made at such a time and under such circumstances as to raise the presumption that it is the unpremeditated and spontaneous explanation of the matter about which made."

In Hewitt v. Eisenbart, 36 Neb. 794, 55 N.W. 252, this court, speaking through IRVINE, C., say:

"The trial court must be permitted to exercise its discretion, very largely, in determining whether the declarations were made under such circumstances as to permit the inference that they were genuine expressions, and the jury must be left to determine whether or not such inference shall be drawn."

In Omaha & R. V. R. Co. v. Chollette, 41 Neb. 578, 59 N.W. 921, the foregoing language is reiterated. The doctrine announced in the last two cases has the support of Greenleaf, who, at sec. 108, vol. 1, of his celebrated work on Evidence, says:

"The surrounding circumstances, constituting parts of res gestae, may always be shown to the jury, along with the principal fact, and their admissibility is determined by the judge, according to the degree of their relation to that fact, and in the exercise of his sound discretion."

The discretion of the presiding judge in such cases, however, must not be understood as an absolute discretion to be exercised arbitrarily, but as a legal discretion, the abuse of which would constitute reversible error.

Satisfied with the foregoing rules, the question presented in this case is, whether the exclusion of declarations in question was an abuse of discretion. We do not think it was. The plaintiff was before the court and testified to the facts showing how he claimed to have received the injury. His testimony shows that he was not an entirely artless witness; that, although but sixteen years of age, he had traveled over a considerable portion of the country, concealing himself on railway trains, to avoid paying his fare, and that he was thus traveling, or attempting to travel, at the time the accident occurred. Under such circumstances, it would be rash to assume that his declarations, made after the injury, were the natural and spontaneous expressions of the truth, rather than an attempt to shift the responsibility for his injury to the shoulders of another, to excite sympathy or for other ulterior purposes. It is urged, however, that suffering as he was from a frightful injury at the time he made the declaration, it is unlikely he would concoct a self-serving declaration. Whether he would be likely or unlikely to concoct such a declaration, would depend largely on his moral habits, the acuteness and readiness of his mental faculties, his fortitude and the intensity of his bodily pain, which would not necessarily be in direct ratio to the seriousness of the injury. Of such matters, the trial court, with the party before it as a witness, was the best judge, and, in the light of all the circumstances shown by the record, we do not think it can be said, as a matter of law, that the exclusion of the testimony, as to his declarations made shortly after the accident, was an abuse of discretion. He was permitted to tell his story under oath, and there was no pressing necessity for the admission of his unsworn statement.

We have not overlooked the case of Missouri P. R. Co. v. Baier, 37 Neb. 235, 55 N.W. 913, wherein the declarations of an injured party remote, perhaps, in point of time, as those under consideration, were admitted in evidence as part of the res gestae. We can only say of that case, as we have said of this, that, whether such declarations should have been admitted, rested largely in the discretion of the trial court, and, having been admitted, this court held, that the circumstances under which they were made warranted their admission. Besides, in that case, the injured party died shortly after the injury, and could not be produced as a witness on the trial. That fact, in itself, would not render evidence of such declarations admissible, but it is undoubtedly proper to be taken into account by the trial court, in the exercise of its discretion as to the admission of such evidence. Travellers Ins. Co. v. Mosley, 75 U.S. 397, 8 Wall. (U.S.) 397, 19 L.Ed. 437.

The following instructions--the first at the request of the defendant, the other by the court on its own motion--were given the jury:

"You are instructed by the court, if you find from the evidence that Grover C. Pledger on the 24th day of August, 1900, was on the front platform of one of the passenger cars of a train operated by the defendant company, with the intention of riding upon said train without paying any fare, then and in that case he was not a passenger upon defendant's train and the defendant railroad company, as a common carrier, owed him no duty."

"It is the duty of a person when traveling upon a railroad from one station to another to enter the passenger coaches provided for the carrying of passengers and to remain therein while such train is in motion, and to procure, prior to the entering therein, a ticket from the agent of said company or if such...