Westall v. Osborne
| Decision Date | 22 April 1902 |
| Docket Number | 143. |
| Citation | 115 F. 282 |
| Parties | WESTALL et al. v. OSBORNE. |
| Court | U.S. Court of Appeals — Second Circuit |
J Parker Kirlin, for plaintiff in error.
R. S Ransom, for defendant in error.
Before WALLACE and LACOMBE, Circuit Judges.
We are constrained to reverse the judgment in this case because of the erroneous exclusion of evidence offered by the defendants upon the trial. The evidence consisted of the declarations of the fellow servants of the plaintiff made immediately after the happening of the accident by which he was injured, and was apparently offered for the purpose of showing that it had been caused by their carelessness instead of the defective appliances of the defendants, as alleged by the plaintiff. The plaintiff, a stevedore, while uncovering a hatch of a steamship preparatory to loading the vessel, fell into the hold owing to the giving way of the hatch cover upon which he was standing; and the declarations were those of the stevedores and a winchman, who were assisting him in uncovering the hold, and were made, some of them instantly after the falling of the hatch cover, and some of them shortly later, but within a few minutes, and while the plaintiff was being removed from the hold. The trial judge ruled that the evidence was only competent for the purpose of contradicting some of the plaintiff's witnesses, and, as their attention had not been called upon cross-examination to the statements which they had made at the time, a proper foundation had not been laid, and it was not admissible. We think the evidence was a part of the res gestae. What was said just after the hatch cover gave way by those present was a concomitant of the accident, and seems to have grown directly out of it as a natural incident. What was said very shortly after by those who had participated in uncovering the hold was so nearly contemporaneous with the accident as to belong to the same class of evidence. Within numerous authorities it was competent original evidence. Railroad Co. v. Coyle, 55 Pa. 396; Insurance Co. v. Mosley, 8 Wall. 397, 19 L.Ed. 437; Com. v. Hackett, 2 Allen, 136; Com. v. McPike, 3 Cush. 181, 50 Am.Dec. 727; 3,880 Boxes of Opium v. U.S. (C.C.) 23 F. 367. In Pierce v. Van Dusen, 24 C.C.A. 280, 78 F 693, decided by the circuit court of appeals, an action in which a railroad employe had been injured by the movement of cars about which he was at work, it was held that statements...
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Wheeler v. Oregon Railroad & Navigation Co.
...... (Elliott on Evidence, sec. 2510; Entwhistle v. Feighner, 60 Mo. 214; Louisville v. Molloy,. Admx., 28 Ky. Law, 1113, 91 S.W. 685; Westall v. Osborne, 115 F. 282, 53 C. C. A. 74; Rothrock v. City of Cedar Rapids, 128 Ia. 252, 103 N.W. 475;. Lambert v. LaConner T. & T. Co., 30 ......
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Stewart v. Baltimore & OR Co., 291.
...were made without any deliberation or motive to distort the facts. Insurance Co. v. Mosley, 8 Wall. 397, 19 L.Ed. 437; Westall v. Osborne, 2 Cir., 115 F. 282; Rast v. Mutual Life Ins. Co., 4 Cir., 112 F.2d 769, 773; Walker v. Prudential Ins. Co., 5 Cir., 127 F.2d 938; Marsh v. Preferred Acc......
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