Woods v. Southern Ry. Co.

• Decision Date: 17 May 1934
• Docket Number: No. 30037.,30037.
• Parties: WOODS v. SOUTHERN RY. CO.
• Court: Missouri Supreme Court

73 S.W.2d 374

WOODS v. SOUTHERN RY. CO.

No. 30037.

Supreme Court of Missouri, Division No. 2.

May 17, 1934.

Appellant's Motion for Rehearing Overruled June 19, 1934.

Appeal from Circuit Court, St. Louis County; H. A. Hamilton, Judge.

Action by Minnie G. Woods, administratrix of the estate of Herman G. Woods, deceased, against the Southern Railway Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

Charles P. Noell, Charles L. Moore, and Allen, Moser & Marsalek, all of St. Louis, for appellant.

Samuel B. McPheeters, of St. Louis, and Kramer, Campbell, Costello & Wiechert, of East St. Louis, Ill., for respondent.

WESTHUES, Commissioner.

This case comes to the writer on a general reassignment of pending cases. Appellant, plaintiff below, appealed from an adverse judgment entered in the circuit court of St. Louis, Mo., in a suit based on the Federal Safety Appliance Act (45 USCA § 1 et seq.).

The facts briefly stated are as follows: The plaintiff was the administratrix of her husband's estate. She sued for damages for the wrongful death of her husband, alleged to have been caused by a defective coupler. Plaintiff adduced evidence that the car in question contained an interstate shipment. Woods was the head brakeman of the crew, and was fatally injured when he stumbled and fell upon the track ahead of the car which was being pushed along the track for the purpose of being coupled to other cars. The car passed over him, severing a leg, from which injuries he died.

A witness named Waldo Davis, age 14, testified that he saw the switching movement in question; that Woods, while working beside the car, attempted to open the coupler by jerking the pin lifter on the side of the car; that he was unable to open it in that way; he then stepped on the track, took hold of the knuckle with one hand and the pin lifter with the other; the pin lifter flew up and Woods stumbled, rolled over, and the wheel of the on-coming car caught him. The testimony of this witness was discredited by showing that he had made statements and had given testimony in a previous trial contrary to his testimony given at this trial.

Plaintiff adduced other evidence in support of her claim. The sufficiency of the evidence to sustain a verdict for plaintiff, had the jury returned such a verdict, was not questioned.

Respondent, defendant below, adduced evidence tending to prove that the coupler was in proper working condition; that it coupled automatically. Defendant also adduced evidence that Woods, on the occasion in question, "trotted in front of the cars and he had taken the cut-lever with his right hand and his left hand hold of the knuckle, and he stumbled and fell and fell out to the side"; that Woods did not try the cut-lever on the side of the car. It was also in evidence that Woods had been in the habit of operating the coupler in this manner and had been called to the train master's office and cautioned about it. The jury returned a verdict for defendant.

Appellant has briefed only two points for a reversal of this case. Error was assigned to the ruling of the trial court in refusing to admit in evidence statements made by Woods shortly after the casualty. Appellant contends that these statements were a part of the res gestæ, while respondent contends that the statements were mere narrations of a past event and not proper evidence under the res gestæ rule. Two witnesses were offered to prove those statements, and, since the rulings of one necessarily control the other, we will, for the purpose of this opinion, consider the offer of proof made through witness Brown. Brown testified he heard screams and ran to the place of the accident, a distance of about two and one-half blocks. He further testified:

"Q. Tell the jury what you saw when you got down there? A. When I went down to where this man was laying, he was laying just south of the track, near the track, within two steps of this railroad track, and he was laying on his side, and his left leg was cut off some place along here (indicating just above knee), and he was bleeding considerable, and some one had tied, I believe it was two handkerchiefs or at least a cloth around his leg, and I tried to bind it more tight, and soon there was several people gathered around there and I stepped back up on the track. After I stepped back away from this man some one of the train crew, I believe it to be the engineer—I am not acquainted with any of the train crew—came up and said, `Red, how did it happen'—

"Mr. Campbell (interrupting): We object to that, to his relation of any conversation with some unidentified person.

"The Court: I will sustain the objection. * * *

"Mr. Noell: Then I want to make an offer of proof.

"The Court: Proceed.

"Mr. Noell: We offer to prove by this witness, Fred W. Brown, that he arrived on the scene within four or five minutes after the injury to Mr. Woods, and that Mr. Woods was asked in his presence by the engineer how the accident happened, and Mr. Woods replied that he was hurt by the defective coupler, that is, that he had to go to the end of the car to open the coupler, since the pin lifter wouldn't open it; that at the time Mr. Woods made that statement he had his right leg cut off, and part of his left leg hurt, and that he was bleeding at the time; that he was right near the end of the car where the accident happened at, and right at the track where it occurred, and that he was suffering much pain at the time.

"Mr. McPheeters: We object to that, and state that the witness in question never stated what time he got down there, and further that the witness never stated that it was the engineer with whom Mr. Woods held this alleged conversation, but only that he thought it was the engineer.

"The Court: I will refuse the offer of proof."

It will be noted that Brown testified deceased's leg had been bandaged when he (Brown) arrived on the scene. The record discloses that members of the crew had bandaged the deceased's leg. Within a short time quite a number of people congregated at the point.

Appellant has cited a number of well-considered cases in support of the contention that the evidence should have been admitted under the res gestæ doctrine. Among them we find Pryor v. Payne, 304 Mo. 560, 263 S. W. 982, 986; Leahey v. Cass Ave. & F. G. Ry. Co., 97 Mo. 165, 10 S. W. 58, 10 Am. St. Rep. 300; Rosenweig v. Wells, 308 Mo. 617, 273 S. W. 1071, and Woods v. St. Louis Merchants' Bridge Ter. Ry. Co. (Mo. Sup.) 8 S.W.(2d) 922, 923.

It is argued that the trend of recent decisions is to extend the res gestæ rule. However, an examination of the cases will disclose that the courts have not departed from the basic principle that, in order for a declaration to form a part of the res gestæ, it must be a spontaneous expression arising out of the main transaction and not a mere narration of a past event. As was said by the Court of Appeals of Kentucky in Stewart v. Commonwealth, 235 Ky. 670, 32 S.W.(2d) 29, loc. cit. 32: "The exclamation must be the act talking for itself, not the person talking about the act. It must be the apparently spontaneous result of the occurrence operating upon the perceptive senses of the speaker (Illinois Cent. Ry. Co. v. Lowery, 184 Ala. 443 , 49 L. R. A. ...