Savannah, F. & W. Ry. Co. v. Holland
| Decision Date | 01 March 1889 |
| Citation | 10 S.E. 200,82 Ga. 257 |
| Parties | SAVANNAH, F. & W. RY. CO. v. HOLLAND. |
| Court | Georgia Supreme Court |
1. The plaintiff, a passenger upon a railway, who left the train late at night, and in so doing (as he alleges) was injured by a fall which broke his leg, having pulled off his coat detached his suspenders, bound up his broken limb, crawled through a culvert from one side of the railway to the other seated himself on the cross-ties, and cried for help, his account of the manner of his leaving the train and receiving the injury, given to a person who reached him about half an hour after first hearing his cries, was no part of the res gestæ, and, being mere narrative of a past event, was not admissible evidence in his own behalf.
2. When, on cross-examination, a witness is interrogated as to a conversation with a view to laying the foundation for impeaching him, he has a right to give the whole conversation so far as it is pertinent; and this, without reference to whether the other interlocutor was an agent of the cross-examining party or not.
3. When one, in the interest of a party to the cause, has maneuvered to entrap or corrupt an adverse witness, and the evidence suggests that he was sent on some mission to the witness by an attorney of the party whose interest he sought to promote the court may charge the jury on the question whether his authority, if any he had, was pure or impure; whether it was limited to the use of proper means for the attainment of right ends, or extended to such means as were actually used and to ends apparently improper and illegal. Both the fact and the nature of the agency are open to the jury, and the evidence warranted the consideration of both.
4. In order for the jury to assess punitive damages in an action for a tort, it is not necessary that they shall be claimed eo nomine in the declaration. It is enough that the facts alleged and proved be such as to warrant the assessment.
Error from superior court, Mitchell county; FORT, Judge.
For a former report of this case, see 9 S.E. 1040.
Chisholm & Erwin, for plaintiff in error.
W. M. Hammond and Spence & Twitty, for defendant in error.
1. The plaintiff below, Holland, being a passenger upon the train was carried past the station at which he wished to stop. Discovering the fact, he requested the conductor to let him off; and a vital question in the case was whether he alighted safely, and received his injury afterwards by falling through a trestle on his way back to the station, or whether he fell through the trestle in alighting by reason of being forced or pushed off at that point by the conductor. There is no doubt but that he was seriously injured by his fall, his leg being broken. No one witnessed the fall. He testified in his own behalf, and made a case of gross negligence against the company. The evidence of another witness was admitted, over objection, as to what the plaintiff said in giving an account of the manner of his leaving the train and receiving the injury. When these declarations were made, the plaintiff had pulled off his coat, detached his suspenders, bound up his broken limb, crawled through a culvert from one side of the railway to another, seated himself on the cross-ties, and cried for help. It was late at night. A person who heard his cry reached him about half an hour after first hearing him. To this person the statement was made; and the question is, was that statement a part of the res gestæ? We think it was not. The Code (section 3773) declares that "declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or after-thought, are admissible in evidence as part of the res gestæ." It is manifest that the act by which the plaintiff was injured had completely terminated before his declarations were made, and that they were no accompaniment of the same. Were they so connected with it in time as to be free from all suspicion of device or after-thought? He had turned his attention from the act to measures looking to his own safety and comfort. He had certainly occupied his thoughts with something besides the facts and circumstances to which his declarations related. He had full opportunity, although, no doubt, under great suffering, to devise a story in his own interest; and there is no reason for concluding that he did not have capacity to take advantage of his opportunity. He was exposed to the temptation of fabricating a story, if he needed the aid of invention; and the exposure was under circumstances calculated to excite suspicion that his statement was, or might have been, referable to deliberation and after-thought, rather than to spontaneous or instinctive utterance. This does not imply that he did fabricate, for he might not have done so. Truth may have been with him, and invention unnecessary. But, as his declarations did not accompany the act, they had to be so nearly connected therewith in time as to be free from all suspicion of device or after-thought. Hall v. State, 48 Ga. 607. If subject to suspicion at all, they were not admissible, although, in the particular case, the suspicion might be erroneous. In Factory v. Barnes, 72 Ga. 218, the injured person was a child 14 years old, and she died from the injury. Her declarations, made half an hour after the injury was received, were admitted in evidence upon the ground that they...
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