Ryan v. Gilmer

• Decision Date: 31 January 1877
• Citation: 2 Mont. 517
• Parties: RYAN, appellant, v. GILMER, respondent.
• Court: Montana Supreme Court

2 Mont. 517

RYAN, appellant,

v.GILMER, respondent.

Supreme Court of the Territory of Montana.

January Term, 1877.

Appeal from Third District, Lewis and Clarke County.

THE judgment of nonsuit was entered by WADE, J.

CHUMASERO & CHADWICK and J. G. SPRATT, for appellants.

The court erred in excluding the declarations of the driver, made at the time and immediately after the accident. Morse v. Connecticut R. R., 6 Gray, 450;Matteson v. N. Y. Central Co., 62 Barb. 364;Price v. Powell, 3 N. Y. 325;McCormick v. Barnum, 10 Wend. 105;Barclay v. Howell, 6 Pet. 498.

The court erred in not submitting the question of negligence on the part of respondents to the jury, and in ordering the judgment of nonsuit. Shearm. & Redf. on Negligence, 329, 330; Whart. on Negligence, §§ 627, 661; Feital v. Middlesex R. Co., 109 Mass. 398;Maury v. Talmadge, 2 McLean, 161;Fairchild v. California S. Co., 13 Cal. 602;Stokes v. Saltonstall, 13 Pet. 181;Boyce v. California S. Co., 25 Cal. 467;Curtis v. Rochester & S. R. Co., 18 N. Y. 542;Derwort v. Loomer, 21 Conn. 246.

The doctrine of contributory negligence does not apply to this case. Appellants did not contribute to the overturning of the sleigh. Shearm. & Redf. on Negligence, 32, 36, 37; Whart. on Negligence, § 301; Richmond v. Sacramento V. R. Co., 18 Cal. 357;Needham v. S. F. & S. J. R. Co., 37 Id. 422; 2 Pars. on Cont. 226-228.

W. F. SANDERS and JOHNSTON & TOOLE, for respondents.

Appellants could not recover if they failed in establishing one of these propositions, that the alleged injury was caused by the negligence of respondents, and that the jury, from the evidence, could compute the damages for which respondents were liable.

The question of negligence is a mixed one of law and fact. When facts are presented the court determines whether or not negligence is established. The court should nonsuit a party if it would set aside a verdict in his favor for want of evidence to support it. Questions of negligence are not exceptions to the rule. Allgro v. Duncan, 24 How. Pr. 210;Pratt v. Hull, 13 Johns. 334;Stuart v. Simpson, 1 Wend. 376;Demeyer v. Souzer, 6 Id. 436;Wilds v. Hudson R. Co., 24 N. Y. 430;Dickens v. N. Y. Central R. Co., 38 Id. 21; Carsley v. White, 21 Pick. 256; Johnson v. Hudson R. Co., 20 N. Y. 65.

The declarations of the driver were clearly outside of his agency. Sto. on Agency, §§ 144, 145; Angell on Carr., §§ 461, 462, 434-442; 1 Nash's P. & Pr. 505, 506; Luby v. Hudson R. Co., 3 Smith (N. Y.), 131.

The complaint set out a special contract, not implied or created by law. Appellants must prove it as laid. Story on Bailm., §§ 601, 602.

Neither the court or jury can apportion negligence and render a judgment or verdict for damages, when both contributed to the negligence causing the injury, or the result or consequences after the injury. Rathbun v. Payne, 19 Wend. 401;Button v. Hudson R. Co., 18 N. Y. 251;Spooner v. Brooklyn R. Co., 31 Barb. 419;Parker v. Adams, 12 Metc. 415; Harlow v. Humiston, 6 Cow. 191.

BLAKE, J.

The appellants are husband and wife, and bring this action to recover damages for a personal injury sustained by the wife, December 15, 1873, in consequence of the alleged negligence of the respondents. At this time the respondents were carriers of passengers in the Territory and received the fare from appellants for their transportation from Watson to Helena. At a point near Beavertown, the respondents' sleigh or “bob-sled,” in which the passengers were being conveyed, was turned suddenly on one side and Mrs. Ryan, one of the appellants, was thrown about seven feet from her seat and received the injury described in the complaint. At the trial, the court sustained the motion of the respondents for a nonsuit and we are called upon to review this ruling.

In this class of cases it is the well-settled rule that it was necessary for the appellants to prove that there was no negligence, or want of due and reasonable care on their part which contributed to the injury, and that it was caused entirely by the want of such care on the part of the respondents. Southworth v. O. C. & N. R. Co., 105 Mass. 342. In this action the accident was not the effect of any act of the appellants, and there is only one question before us for determination. Did the evidence tend to prove that the sleigh was overturned by the negligence of the respondents, or their servant?

The appellants claim that the court erred in excluding the declarations of the driver of the respondents, which were made immediately after the accident and during the time that he was engaged in the performance of his duties. He then said that he was sorry that she (Mrs. Ryan) was hurt; that he could have avoided the overturning of the sleigh if he had been paying the slightest attention; and that it was his carelessness, and there was no necessity for it. The representations or admissions of this agent will bind the respondents, if they were made within the scope of the authority which had been confided to him. Story on Agency, § 134. We think that an examination of the following cases shows that this principle is not applicable to the statements of the respondents' driver, which the appellants sought to prove in the court below. In Luby v. Hudson R. R., 17 N. Y. 131, it was held that the declarations of the driver of a car, which had run against and injured a person, made after the accident occurred and while he was in charge of the car, that he could not stop the car because the brakes were out of order, were not competent against the company that employed the driver. In Robinson v. Fitchburg R., 7 Gray, 92, which was an action against a railroad corporation for damages caused by a collision through the negligence of the engineer, it was held that the declarations of the engineer respecting the accident, made a number of days afterward, were not competent against the company. The supreme court of the United States has recently considered the same question in Packet Co. v. Clough, 20 Wall. 528. It was held that the conversation of the captain of a steamboat with a party who was injured in going upon the boat, made two and one-half days after the accident occurred, in which he stated that the injury was caused by the carelessness of the hands in failing to put out the regular plank, was not competent against the owners of the boat. Mr. Justice STRONG, in delivering the opinion of the court, said: “But an act done by an agent cannot be varied, qualified or explained either by his declarations, which amount to no more than a mere narrative of a past occurrence, or by an isolated conversation held, or an isolated act done at a later period. 1 Taylor on Evidence, § 526. The reason is that the agent to do the act is not authorized to narrate what he had done or how he had done it, and his declaration is no part of the ‘ res gestæ.'DDDDD'DDDDD’ In a later case, the same high tribunal held that “the opinion of an agent, based upon past occurrences, is never to be received as an admission of his principals * * * .” Insurance Co. v. Mahone, 21 Wall. 157. Sir WILLIAM GRANT discusses this proposition in Fairlie v. Hastings, 10 Ves. 123, and says: “If any fact, material to the interest of either party, rests in the knowledge of an agent, it is to be proved by his testimony, not by his mere assertion.” Story on Agency, § 136, and cases there cited; Anthony v. Estabrook, 1 Col. 76, and cases there cited; M. & M. R. Co. v. Finney, 10 Wis. 388.

In the case at bar, what the driver said to the appellants concerning the accident was the narrative of a past occurrence and could not affect the liability of his principals. In the authorities which have been referred to, the number of hours or days that elapsed after the occurrence of the accident complained of, and during which the agent made certain admissions against his principal, is treated as an immaterial fact. If they were uttered before the journey upon which the injured party entered was ended they were mere narration. When the respondents' driver made the statements to the appellants, which have been specified, “the accident was past,” and the injury to Mrs. Ryan was complete. “The only wrong she sustained, if any, had been consummated.” Packet Co. v. Clough, supra. Therefore the court did not err in excluding the declarations of the respondents' driver.

It will be necessary to state the testimony of the appellants relating to the alleged negligence of the respondents, to show the nature of the legal question which must now be considered. It appears that the appellants had been conveyed in a coach from Watson to a point which is south of Beavertown, where the sleigh or “bob-sled” was furnished by the respondents for the purpose of transporting the appellants and express matter and mail sacks. When the accident took place the parties were traveling upon a good level road at the rate of about five or six miles per hour, and the snow on the ground made fine sleighing. The horses were strong and under the control of the respondents' driver and were stopped immediately, without any difficulty, and the sled did not run out of the road or track. The appellants know of no cause for the upsetting of the sleigh, although Mr. Ryan, one of the appellants, made a careful examination at the time for the purpose of discovering it. Upon this subject, the evidence does not enlighten us.

When these facts are reviewed it will be seen that only one question can be discussed. Did the appellants support their allegation of negligence on the part of the respondents by producing testimony, which tended to prove that the accident occurred, without the fault of the appellants, under the circumstances which have been pointed out?

The complaint in this case contains the same allegations as the declaration at common law in similar actions. No contract between the appellants and respondents is set forth in the pleadings, or mentioned in the evidence, which is in conflict with the...