Ohio & Mississippi Railway Co. v. Cullison

Green, J. This was a suit brought to recover damages for an alleged assault upon, and forcible ejectment of, appellee from appellant’s passenger train by the conductor in charge thereof. The jury by their verdict found defendant guilty and assessed plaintiff’s damages at $500. Defendant’s motion for a new trial was overruled. Judgment was entered upon the verdict and defendant took this appeal. Two errors are well assigned and require the reversal of this judgment. The court erred in admitting the testimony of witnesses on behalf of plaintiff, detailing statements and complaints made by him after the time he was ejected from the train, touching the alleged assault. The evidence shows the distance to have been between 150 and 200 feet from the point plaintiff was ejected, or jumped from the train, to the depot platform where he made these declarations a few minutes afterward. Leech, witness for plaintiff, was asked: “Did you see him right after he got up and came back ? ” and answered, “ Tes, within a few minutes;” and was then asked, “ Tell the jury —don’t use his language—but tell the jury and his honor, tho Judge, what he complained of ? ” Objection was made to this question, and exception to overruling the objection, and witness answered: “He complained of being thrown off the train without any right, as he had money to pay his fare.” Lantermann, another witness for plaintiff, after testifying he saw plaintiff on the platform when he returned there, was asked by plaintiff’s counsel : “ How don’t use his language, but just tell the jury what he cóm plained of?” Like objection to this question and exception to overruling same was made, and witness answered : “ He complained of bei'ng kicked off; that’s about all I heard him complain of.” Witness was then asked : “Did he say anything about where he was going?” and over like objection and exception was permitted to and did answer: “ He said he was going to Olney.” Bunn, another witness for plaintiff, was asked: “You heed not use his language, but did he make any complaint?” and over like objection and exception was permitted to and did answer : “ When he got on the platform I was about ten feet from him and didn’t hear what all he said; I am hard of hearing; I remember that somebody asked him where he was going and asked him if he had a ticket and asked him if he had money, and he said yes, and put his hand in his, pocket and pulled out in the neighborhood of a dollar in change.” These declarations of plaintiff were not a part of the res gestae, but were made after the time the assault was alleged to have been committed and at a different place. They amounted to a mere narration of that which had already occurred—a past event. The test of the admissibility of hearsay evidence as res gestae, is well and fairly stated in Chicago West Division Ry. Co. v. Becker, 128 Ill. 545, a case in point here. The true inquiry, according to all the authorities, is whether the declaration is a verbal act, illustrating, explaining or interpreting other parts of the transaction of which it is itself a part, or is merely a history, or part of a history, of a completed past affair. In the one case it is competent, in the other it is not. It appears by the record that under the erroneous theory they were admissible as a part of the res gestae. These declarations made by. plaintiff, not verified by oath or subjected to the test of cross-examination, but merely repeated by witnesses, were given the same potency and effect as evidence as eonld be claimed for the testimony of sworn witnesses properly examined and cross-examined. Moreover, this evidence, erroneously admitted, tended to prove material facts affirmed by plaintiff and controverted by defendant, viz.: that plaintiff was a passenger on defendant's train and was unlawfully kicked off by the conductor. Hence the error worked injury to defendant. The court also erred in permitting counsel for plaintiff, over the objections on behalf of defendant, to repeatedly use remarks and expressions in his address to the jury, not justified by the evidence and of a character quite offensive and vituperative, and erred in refusing to instruct the jury to disregard these statements of plaintiff’s counsel as requested by counsel for defendant. We will not lengthen this opinion by reproducing the portions of said address alluded to. Suffice it to say the remarks were quite extended and very improper; they were not justified by the evidence, and were calculated to, and doubtless did, unduly excite the passions and prejudices of the jury against the defendant and thus prevented that which the law demands and every litigant is entitled to—a fair and im] artial trial. For the errors indicated we reverse the judgment and remand the cause. Reversed and remanded.