The Augusta v. Randall Et Ux

• Decision Date: 31 October 1887
• Citation: 79 Ga. 304
• Parties: The Augusta and Summerville Railroad Company. vs. Randall et ux.
• Court: Georgia Supreme Court

79 Ga. 304

The Augusta and Summerville Railroad Company. vs. Randall et ux.

Supreme Court of the State of Georgia

OCTOBER TERM, 1887.

[COPYRIGHT MATERIAL OMITTED.]

New Trial. Witness. Evidence. Depositions. Interrogatories. Railroads. Res Gestæ. Damages. Presumptions. Before Judge Roney. Richmond Superior Court. April Term, 1887.

The evidence for the plaintiff tended to show that she was a passenger on a car of the defendant, going to her home. On reaching a turn-table on the track, she rang the bell, and shortly afterwards the car stopped. She went to the rear platform to alight, but before she was able to do so, the car was jerked forward, throwing her to the ground and injuring her seriously. Her arms were full of bundles, so that she failed to catch hold of anything to steady herself.

The driver of the car testified that he knew nothing of the injury, except that, after Mrs. Randall fell, he saw her getting up. He heard no bell ring before she left the car. Much other evidence was introduced by the defendant to show that the bell was not rung before Mrs. Randall attempted to alight, and that her injuries were not so severe as she testified. The car was crowded, and was moving slowly when she stepped off.

Such other portions of the evidence as are material here are stated in the decision.

F. H. Miller; J. S. W. & T. Davidson, for plaintiff in error.

Twiggs & Verdery, for defendants.

Blandford, Justice.

This was an action brought by Hattie A. Randall and her husband, to recover damages, against the Augusta and Summerville Railroad Company, for injuries which she alleged she had sustained by reason of the negligence of the servants of the company in throwing her from one of its cars, thereby injuring, wounding and bruising her, and causing her great pain and suffering. A verdict was had for the plaintiffs in that action, in which the jury assessed her damages at $1,000. A motion for new trial was made by the street railroad company on various grounds.

1. The first ground of error is, that " the verdict is contrary to the evidence, and the principles of justice and equity." We think there is nothing in this ground. There was enough evidence, if the jury believed the testimony of the plaintiff, to have authorized this verdict; and we do not see where the principles of justice and equity have been violated in the finding of the jury.

2. The next ground is, that" the court admitted in evidence, over the objections of defendant's attorneys, the testimony on the cross-examination of Miss Keener, consisting of the contents of an ex parte affidavit read to the witness bodily, but not annexed to the deposition, and not before the court or accompanying or offered as an accompaniment to this testimony; the ground of objection at the time of the examination being as follows: That all testimony referring to this paper (which was identified by the witness and marked exhibit " A ") should be excluded unless such paper should be delivered to the commissioner, by counsel for plaintiffs, and annexed to the depositions; counsel for the plaintiffs contending that the testimony of the witness in relation to such paper should stand as a part of the depositions, and declining to deliver up the paper. These objections were renewed on the trial as to this testimony, and an inspection of the paper, which had been called for under notice, demanded, that the court might determine the force of the objection; all of which objections were overruled, and the paper was not produced or ever placed in evidence by the plaintiffs; and the evidence was admitted over said objections without inspecting the paper."

To understand this ground properly: The defendant sued out a commission to take the testimony of Miss Keener. Counsel for plaintiffs and for the defendant both appeared before the commissioner, in the manner provided by the code, and examined the witnesses orally instead of by written interrogatories. On cross-examination, counsel for the plaintiffs put to the witness the question if she had not made a certain affidavit, and thereupon read to her the affidavit, the contents of which were taken down by the commissioner and fully set out in the deposition, and returned to the court as a part of the testimony of the witness. Counsel for the defendant, who had sued out the commission, objected to this testimony on the ground that the affidavit must be annexed to the return made by the commissioner. The objection was founded upon section 3887 of the code, which says that witnesses may write out their own answers in the presence of the commissioners, and by their consent; and if the witnesses answer from written memoranda, such memoranda shall be sent with the commission, and the fact certified by the commissioners. We think the learned counsel mistake the application of this rule. It clearly does not apply in a case of this kind, where the affidavit was read to the witness, and was fully set out by the commissioner, and the witness examined as to whether she made it, etc. We think that was all the law required should be done. The plaintiff in error, therefore, can take nothing by this exception.

3. The 4th ground is of a more serious character. It is as follows: "Because the court admitted in evidence, over the objection of defendant's attorneys, on direct examination and after Mrs. Randall had testified, as a part of the res gestæ, the statement made by Mrs. Hattie A. Randall to her friend and relative, Mrs. Shellman, who resided at a distance of a block and a half from the place of accident, and opposite her own residence, and to whose house Mrs. Randall went after first going to her own home. The whole of this testimony appears in the brief of testimony, but the particular objectionable portion is the statement that she rang the bell and the car stopped before she attempted to get off, and then started and threw her from the platform; defendant\'s attorneys insisting that this was hearsay testimony and inadmissible as a part of the res gestae

It appears in this case that, after Mrs. Randall was precipitated from this car upon the ground, and immediately after she had gotten up, picked up her bundles and brushed herself, the first thing she did was to secure the name of the driver of the car. According to her testimony, she knew him very well by sight, having ridden in the same car with him often before; but after this occurrence, the first thing she did was to inquire his name. She then went to her house, which was a block and a half off—150 or 200 yards; entered her house, and deposited her bundles. She then left and went across the street to where Mrs. Shellman, her sister-in-law, lived, and while there made a statement to Mrs. Shellman as to how she was hurt. When Mrs. Shellman was introduced to prove what Mrs. Eandall said to her, objection was made to her testifying on that subject. She testified in this way (Mrs. Randall having testified first): that when Mrs. Randall came into her house, she was greatly excited; and in reply to Mrs. Shellman's inquiry as to what was the matter, she told her she had been thrown off the car and was hurt, and how she came to be hurt. Thereupon Mrs. Shellman got her a glass of brandy, made some tea and gave it to her, and put her to bed. It does not appear at what particular time she made this statement to Mrs. Shellman. Mrs. Shellman went on to testify that what Mrs. Randall stated to her at her house on that occasion was what she (Mrs. Randall) had sworn to on the trial of this case; but how long after the occurrence she made this statement to Mrs. Shell-man, does not appear in the record. Mrs. Shellman merely testified that what Mrs. Randall had stated in her testimony was the same thing she told her; but didnot state what Mrs. Randall did tell her. The court, under these circumstances, admitted this testimony of Mrs, Shellman as part of the res gestæ.

As we understand it, res gestæ are things connected with a transaction, taking place and stated at the time of the transaction. But that doctrine has been somewhat extended by our courts. Our code declares (§3773) that "declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, are admissible in evidence as part of res gestæ." Declarations not connected with the transaction, nor bearing upon it or serving to illustrate it, although made at the very time the act was committed, are not admissible...