Whitney v. Sioux City

• Citation: 172 Iowa 336,154 N.W. 497
• Decision Date: 26 October 1915
• Docket Number: No. 30310.,30310.
• Parties: WHITNEY v. SIOUX CITY.
• Court: United States State Supreme Court of Iowa

172 Iowa 336

154 N.W. 497

WHITNEY

v.SIOUX CITY.

No. 30310.

Supreme Court of Iowa.

Oct. 26, 1915.

Appeal from District Court, Woodbury County; George Jepson, Judge.

Action for damages, consequent upon injury suffered in one of defendant's streets, resulted in a judgment against defendant, from which it appeals. Affirmed.Schmidt & Pike and Sam Page, all of Sioux City, for appellant.

Shull, Gill, Sammis & Stilwill, and U. G. Whitney, all of Sioux City, for appellee.

LADD, J.

[1][2] The facts sufficiently appear in Lawrence v. Sioux City, 154 N. W. 494, decided at the present session of court. Three points not there ruled will be considered. After being precipitated in the gully, plaintiff and Dorothy Lawrence were taken to the house of St. Onge, and witnesses were asked in substance what Dorothy Lawrence then said in presence of persons named, and an objection as incompetent, irrelevant, and immaterial and no foundation laid was sustained. Defendant offered to show that she said, “We were going too fast, and I told John so,” and held evidence thereof incompetent. What she said of the speed of the car was a mere opinion or conclusion of the deceased, and no statement of fact as to how fast the car was going. This being so, it was not admissible, even if a part of the res gestæ. Dunn v. Railway, 130 Iowa, 580, 107 N. W. 616, 6 L. R. A. (N. S.) 452, 8 Ann. Cas. 226. But, coupled with the statement, “I told him so,” a fact was stated, namely, that she told him “we were riding too fast.” But this related to some time prior to the accident, a past occurrence, and not to what happened in connection with the precipitation of the car into the ditch. It did not grow out of the transaction, nor derive credit therefrom, but was merely the relation of a conversation which may have taken place at any time while traveling the two miles prior to reaching the gully. A mere recital of a past occurrence is not to be submitted as part of the res gestæ, and there was no error in excluding this evidence. Alsever v. Railway, 115 Iowa, 338, 88 N. W. 841, 56 L. R. A. 748;Chicago West Div. Ry. Co. v. Becker, 128 Ill. 545, 21 N. E. 524, 15 Am. St. Rep. 144. The true theory upon which such a declaration is received in evidence is that it illustrates, explains, or interprets other parts of the transaction of which it is a part, but, when merely an account in part or in whole of a completed past affair, it should be excluded.

[3] II. Paul Gibeau testified to having a talk with Knott about a week before the accident, and was asked whether Knott had then made any statements about the condition of the big lights on the car. An objection, as immaterial, irrelevant, and incompetent, was sustained. The alleged error may be disposed of on the ground there is nothing in the record tending to show the nature of the answer expected, or that, if given, or the statements recited, anything testified to would have had any bearing on the issues being tried. Arnold v. Livingstone, 155 Iowa, 604, 134 N. W. 101;American Express Co. v. Des Moines National Bank, 152 N. W. 625. Knott had testified that he had not told Gibeau that his Prestolites were “out of whack”; but, from this, it was not to be inferred that the...