Coll v. Easton Transit Co.

Opinion by Mr. Justice Fell, It appeared from the testimony presented by the plaintiff that •at the time of the accident the defendant’s car was running •after dark on a declining grade on a road which passed along the top of an embankment. Between the tracks of the railway and the edge of the embankment was a footpath covered with cinders and varying in width from four to six feet. At the outer edge of the path was a guard rail supported by posts. The roadbed was in an unfinished condition. The earth which had been thrown out in making an excavation for the track had not been replaced, the ties were exposed and the rails projected above the surface of the road. The plaintiff’s husband, when last seen before the -accident by the witness called at the • trial, was on the footpath eighty or ninety feet from the car. Dalton, a lineman in the employ of the defendant company, who had been riding with the motorman on the front platform of the car, was seen by the witness to jump from the car and to run 'forward in advance of it. The speed of the car was not checked until it was brought to a sudden stop. ■ The person [625] injured was then found behind the car, his legs having been run over by it, and Dalton had hold of him. From these facts it may be inferred that the deceased, finding himself in a position of danger on the narrow path, and fearing that he would be crushed between the projecting side of the car and the guard rail, attempted to reach a place of safety by crossing the road, and in so doing he tripped and fell across the track, and that Dalton saw him fall and ran to assist him. There is no other explanation of Dalton’s conduct in jumping from the car and running ahead in connection with the fact that he had hold of the man immediately after-his legs were crushed. If Dalton saw the man when he fell, the motorman who was standing on the same platform and whose duty it was to look ahead saw him or should have seen him when he was eighty feet away, and he should have attempted to stop the car at once. The car was running only half as fast as Dalton ran, and its speed was not checked until it had run eighty feet. Whether these inferences could properly be drawn was a question for the jury. The judge could not say as matter of law that they were without foundation on the facts testified to, and it was error to enter a nonsuit. As the case goes back for trial it is important that the remaining assignments should be considered. A witness had testified that immediately after the accident and before the man injured had been lifted from the tracks, Dalton, the lineman, said that he had run ahead to pull him off the track and did not have time to do it. This testimony on motion was struck out; and an offer to prove that the motorman within two minutes of the occurrence of the accident, and while he and other employees of the company were in charge of the body of the injured person, had said that he could have stopped the car in time, but that he supposed that Dalton would have had the man removed from the track before the car reached him, was rejected. The testimony relating to Dalton’s statement appears to have been struck out for the reason that he was not employed in the operation of running the cars, and that relating to the statement of the motorman to have been rejected for the reason that it was too remote from the occurrence to be admissible as part of the res gestae. Neither ground was well taken. 'To make his declaration admissible as part of the res gestae it was not necessary that Dalton should [626] have been in the employ of the company for. the purpose of running its cars, or for any purpose. His acts were a part of the occurrence, and they could have been proved if done by an entire stranger. His declarations made-at the time explained the nature of his acts and the acts of others which together made up the whole occurrence under investigation. The declaration of the motorman, of which proof was offered, was separated in time two minutes only from the infliction of the injuries. It emanated from the act, it was unconsciously associated with and stood in immediate causal relation to it. The occurrence had not yet ended. He was not speaking as the narrator of a past event, but as a participant in an uncompleted one. Both of these declarations clearly come within the comprehensive definition given in Wharton on Evidence, sec. 259 (2d ed.) : “ The res geste may therefore be defined as those circumstances which are the undesigned incidents of a particular litigated act and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or -less appreciable. They may consist of speeches of any one concerned, whether participant or bystander: they may comprise things left undone as well as things done. Their sole distinguishing feature is that they should be necessary incidents of the litigated act; necessary in this sense, that they are part of the immediate preparations for of emanations of such act, and are not promoted by the calculated policy of the actors.” As the plaintiff was allowed to show the actual physical condition of the road at the time of the accident she was not injured by the exclusion of the testimony referred to in the fourth and fifth assignments, and as the pleadings stood at the time of the trial it is doubtful whether the testimony was admissible. The first, second and third assignments are sustained, and the judgment is reversed with a'procedendo.