Steinhofel v. Chi., M. & St. P. Ry. Co.

• Decision Date: 07 January 1896
• Citation: 92 Wis. 123,65 N.W. 852
• Court: Wisconsin Supreme Court
• Parties: STEINHOFEL v. CHICAGO, M. & ST. P. RY. CO.

92 Wis. 123

65 N.W. 852

STEINHOFEL

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

Jan. 7, 1896.

Appeal from circuit court, Racine county; W. F. Bailey, Judge.

Action by William J. Steinhofel, administrator of William J. Steinhofel, Jr., against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Action for the negligent killing of William J. Steinhofel, Jr., son of plaintiff, by defendant's train, at a highway crossing, on the morning of October 1, 1892. On the evening of September 30, 1892, the deceased and one John Williams went, with a single horse and buggy, from the city of Racine to the village of Union Grove, a distance of about 15 miles, to attend a dance. They started to return to Racine at about 3 o'clock on the morning of October 1, 1892. They had with them, in the buggy, on their return, one Olivia Olson. Steinhofel was driving. When they reached respondent's track, at a place called “Johnson's Crossing,” about four miles from Union Grove, their team, in some unexplained manner, came in collision with respondent's train, and Steinhofel and Olivia Olson were killed. The complaint charges that Steinhofel's death was occasioned by the omission of the respondent to give warning of the approach of its train to the highway crossing by sounding its whistle and ringing its bell. The answer was a general denial. The issues tried were whether the whistle was sounded and the bell rung, and whether the deceased, by his own negligence, contributed to produce the accident. The highway on which the party were traveling crossed the railroad track two or three times before reaching Racine, and in many places was parallel with it. Near the point of the accident it ran nearly parallel with the railroad track, until, near the crossing, it makes an abrupt bend, and crosses the track, approximately, at right angles; so that the party in the buggy, for a considerable distance before making the turn, were almost directly facing the approaching train. The wind was blowing from the train towards them, and the train was making at least the usual amount of noise. The headlight of the approaching train might be seen some 40 or 50 rods before it reached the crossing. One Bristol, who was driving a team a few rods behind the party in the buggy, heard the noise of the train and stopped his team some 15 rods before arriving at the crossing, and waited for the train to pass. He saw the headlight at some considerable distance before the train had reached the crossing. The party in the buggy drove on, unheeding the approaching train, and were struck by the train, or drove against it,--probably the latter, as both bodies were found in the wagon track on the crossing. They did not discover the train until the instant of collision. Williams testifies that as they were going down towards the railroad track, Olivia Olson “gave a scream, and jumped forward.” Williams turned his head, and saw “a flash of light,” and it was all over. That is all that is known of the circumstance of the accident. Several witnesses testify to hearing the noise of the train for a considerable time before it reached the crossing, and to having given it attention. No witness heard the sounding of the whistle or the ringing of the bell. But the defendant's employés on the train all testify, positively, both that the whistle was sounded and the bell rung. The court directed a verdict for the defendant, on which a judgment dismissing the complaint, and for costs, was entered. From this judgment the plaintiff appeals.Cooper & Nelson and John B. Simmons, for appellant.

C. H. Van Alstine and T. M. Kearney, for respondent.

NEWMAN, J. (after stating the facts).

A short time after the accident,--from 30 to 60 minutes afterwards,--and before Olivia Olson had been removed, a witness (John Johnson) arrived, and had some conversation with her in regard to the accident. On the trial he was asked, “What, if anything, did Miss Olson say to you in regard to it?” The question was objected to as incompetent, and the objection was sustained. It was now urged that Olivia Olson's narration of the circumstances of the accident, as then given to the witness Johnson, including defendant's omission to sound the whistle and ring the bell, was competent as being a part of the res gestæ. If not a part of the res gestæ, their narration would be simply hearsay, and, as such, inadmissible. “Res gestæ” are defined, generally, as the facts surrounding or accompanying a transaction or occurrence which is the subject of legal investigation. They are not themselves the facts which constitute the transaction or occurrence itself, but such as attend it and give character to it. “The idea of the res gestæ presupposes a main fact or principal transaction, and the ‘res gestæ’ mean the circumstances, facts, and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character.” Hermes v. Railway Co., 80 Wis. 590. Declarations, in order to be res gestæ, must be contemporaneous with the main fact. If they amount to no more than a narration of a past occurrence, they are mere hearsay, and not admissible. 1 Greenl. Ev. § 110; 21 Am. & Eng. Enc. Law, 101, and cases cited in note 1. It is evident that this statement of Olivia Olson was too far removed from the time of the accident to be contemporaneous with it, in any true sense, and was a mere narration of a past occurrence. It was not error to exclude it.

The issues involved in the trial were: (1) Whether the defendant gave warning of the approach of its train to the crossing where the accident occurred, by sounding its whistle and ringing its bell. Failure to give such warning would make it liable for such damages as should occur in consequence of the omission. And (2) whether the deceased was negligent in any matter which contributed, proximately, to produce the accident. For, if the negligence of the deceased so contributed to produce the accident, the plaintiff cannot recover, although the defendant may have been negligent in failing to give the warning; for it is well settled that any want of ordinary care, on the part of the party injured, which contributes to produce the injury, will defeat a recovery. Randall v. Telegraph Co., 54 Wis. 140, 11 N. W. 419;Williams v. Railway Co., 64 Wis. 1, 24 N. W. 422;Bloor v. Delafield, 69 Wis. 273, 34 N. W. 115;Schoenfeld v. Railway Co., 74 Wis. 433, 43 N. W. 162. Whether the evidence was sufficient to sustain a...