Westcott v. Waterloo, Cedar Falls & Northern Ry. Co.

• Decision Date: 18 December 1915
• Docket Number: 30056
• Citation: Westcott v. Waterloo, Cedar Falls & Northern Ry. Co., 155 N.W. 255, 173 Iowa 355 (Iowa 1915)
• Parties: JOHN E. WESTCOTT, Administrator, Appellant, v. WATERLOO, CEDAR FALLS & NORTHERN RY. CO., Appellee
• Court: Iowa Supreme Court

155 N.W. 255

173 Iowa 355

JOHN E. WESTCOTT, Administrator, Appellant, v. WATERLOO, CEDAR FALLS & NORTHERN RY. CO., Appellee

No. 30056

Supreme Court of Iowa, Des Moines

December 18, 1915

Appeal from Blackhawk District Court.--FRANKLIN C. PLATT, Judge.

ACTION to recover for personal injuries.Verdict for the defendant.Plaintiff appeals.Affirmed.

Affirmed.

Reed & Tuthill, for appellant.

Pickett & Swisher, for appellee.

GAYNORJ. DEEMER, C. J., LADD and SALINGER, JJ., concur.

OPINION

GAYNOR, J.

In the city of Waterloo, Mulberry Street runs practically east and west.Second Street runs north and south and intersects Mulberry Street at right angles.One of defendant's lines in the city is laid on Mulberry Street and runs over and across Second Street.The line on Mulberry Street extends a number of blocks east and west of Second Street, on Mulberry Street.On the 3d day of June, 1912, the defendant was operating one of its cars on Mulberry Street and proceeding eastward towards Second Street.Plaintiff's intestate Earl Westcott, on the same morning, was riding a motor cycle on Second Street, proceeding southward towards the tracks of defendant company.At the intersection of these two streets a collision occurred between the deceased and the defendant's car, out of which collision the deceased arose with severe injuries, from which he died on the 17th day of September, 1912.His administrator brings this action to recover damages for the injuries thus sustained, and bases his right to recover upon the allegation that the defendant was at the time operating its car at a high and dangerous rate of speed, without sounding any gong or giving warning of any kind of its approach, and in that it failed to slow down and stop the car when danger to young Westcott became apparent, or, in the exercise of reasonable caution, should have become apparent.The defendant tendered issue by a general denial.At the conclusion of all the testimony, the court, on motion of the defendant, directed a verdict in its favor.Judgment being entered upon the verdict, plaintiff appeals.

Two errors are assigned for our consideration: (1) That the court erred in sustaining the motion to direct a verdict on the record made; (2) that, in the making of the record, the court erred in excluding certain testimony offered by the plaintiff.

We will consider the alleged errors in the reverse order of the assignment.Under the second assignment, it is claimed that the court erred in rejecting testimony offered by the plaintiff, tending to show certain statements made by the deceased, after the injury, which, it is claimed, were of the res gestae.

Before coming to the real matter around which this complaint centers, it is necessary that we state somewhat of the record, as it was preceding the offer of the rejected testimony.The collision in which Earl Westcott received his injuries occurred at 7:30 in the morning.He was unconscious when he was picked up.He was taken immediately to a hospital; remained unconscious until he reached the hospital.About five minutes elapsed between the time he was placed in the ambulance and his arrival at the hospital.Upon reaching the hospital, he was immediately placed upon the operating table.Soon thereafter, he recovered consciousness, and talked with the doctors and nurses attending him.Shirley Parker, one of the nurses, testified that she assisted in taking care of him, and was in the operating room ten or fifteen minutes before Dr. Alford came in.

"He was conscious when I saw him.The anaesthetic was administered about three-quarters of an hour after he was brought into the operating room.After the anaesthetic, he did not recover consciousness until he was removed from the operating room to his room."

Lyda Ellis testified that she, also, was one of the nurses; that she saw him after he was brought into the operating room, assisted about the operation and in the care of the boy; that, when she first saw him, he was conscious; that she remained in the operating room during all the time the boy was there, which was about forty-five minutes.

Dr. Alford testified that he was present and assisted in the operation; that young Westcott was under the anaesthetic about thirty minutes and was then taken to his room; that he was unconscious from the time the anaesthetic was administered until he was taken out of the operating room.

Each of these witnesses testified that after he was brought into the hospital and placed on the operating table and before the anaesthetic was administered, he was perfectly conscious, and talked rationally; that he recognized Dr. Alford's voice before he came into the room, and called him; complained of being in pain and asked that pillows be placed under his limbs to rest them; talked a great deal about different matters and little things, in regard to his position, etc.

Each of these witnesses further testified that, upon recovering consciousness and before the anaesthetic was administered, he said, in speaking of his injuries and how they were brought about: "It is my fault.I tried to get ahead of the car.I tried to beat the car.I thought I could beat the car."

Lyda Ellis further testified: "Dr. Alford was called in.The boy called him.He heard Dr. Alford talking in the other room, recognized his voice and called him in.I remember hearing him (Earl Westcott) say, 'It is my fault.I tried to get ahead of the car.'He did not state how he tried to get ahead of the car.Just how long it was before the anaesthetic was given after he came into the room, I cannot say.I wouldn't say it was forty-five minutes,--probably not as long as that."

Dr. Alford testified that it was thirty minutes after he saw him before the anaesthetic was administered.

These witnesses were all called by the plaintiff and testified in plaintiff's behalf.Thereupon, the plaintiff called the deceased's father, John E. Westcott, who testified:

"When I reached the hospital, Earl was in the operating room.He was then taken out of the operating room to his room.I saw him for the first time after he had been taken to his room.He was then unconscious.At that time, I did not know an anaesthetic had been given to him, but have since learned that it was.I do not know what his condition was from the time he reached the hospital up to the time he received the anaesthetic.I was not there during that interval.I first saw him in his room between 9:00 and 10:00 o'clock.He remained unconscious for about five minutes, though it seemed longer.I was standing by his bedside after he recovered consciousness from the anaesthetic.He was unconscious when I first went in the room.He was suffering pain after he came out from the anaesthetic."

He was then asked this question: "What, if anything, did he say when he regained consciousness, with reference to the injury and how he was injured?"

This question was objected to, and objection sustained.

Thereupon, the plaintiff made the following offer in writing:

"Plaintiff offers to prove, by the witness John E. Westcott, that plaintiff's intestate then said: 'I wasn't riding fast.I was coming down Second Street ten or twelve miles an hour; did not hear any bell.If they had rung the bell, they wouldn't have got me.Heard a rumble as I came down Second Street.Looked down the street toward town where the cars usually come from; saw no car.Looked in opposite direction, and the car was almost upon me.I done the best I could.I turned with the car and done the best I could to get out of the way.'"

This was objected to and objection sustained, and upon this ruling, error is predicated.

This evidence is clearly hearsay and in the nature of a self-serving declaration, and is not admissible, unless it comes under the exception to hearsay testimony which allows such testimony as a part of the res gestae.The declaration or statement, to be a part of the res gestae, must be the expression of a thought born in the mind as a result of natural and legitimate commerce with the act itself, concerning which the expression is made.It must be the instinctive expression of the mind, prompted and uttered as the natural and proximate result of the operation of the act upon the mind itself.To be a part of the res gestae, the declaration must be the instinctive expression of the mind's conception of the act, the conception being the legitimate, natural and usual operation of the act itself upon the mind.Though time is held not to be controlling, yet, the shorter the time,--the shorter the interval between the time of conception and birth,--the more certain it is that the thought expressed is the legitimate offspring of the act itself.

In the case at bar, the catastrophe produced in Earl physical conditions.These conditions of the body, operating upon the mind, naturally found expression immediately upon recovering consciousness.The cause and the condition in which he found himself were intimately and closely associated with each other, one dependent on the other.When he first recovered consciousness, what he said could be well treated as an expression of the act speaking through the mind of him who had suffered from the act, and was so treated and received by the court.After reaching the hospital, he remained conscious...