Kehan v. Washington Railway & Electric Co.

Mr. Justice McComas delivered the opinion of the Court: Four assignments of error relate to the instructions granted and to a part of the oral charge of the court concerning the burden of proof in this case. In City & Suburban B. Co. v. Svedborg, 20 App. D. C. 549, this court said: “The plaintiff was a passenger on the defendant’s car, and, as such, was entitled to the highest degree of care and caution on the part of the carrier for her protection against injury. It is true, to make out a prima facie case, the burden of proof of negligence, on the part of the defendant, as to the cause of the injury, was upon the plaintiff; but this burden is changed in the case of a passenger by showing that the accident occurred that caused the injury to the plaintiff while the latter was a passenger. The burden of proof is then cast upon the defendant to explain the cause of the accident, and to show, if that be the defense, that the plaintiff was negligent, and that her negligence caused or contributed to the production of the injury. Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 557, 35 L. ed. 272, 11 Sup. Ct. Rep. 653. The happening of an accident to a passenger while on or getting off a vehicle, under the control of the carrier, and which in the usual and ordinary course of things would not happen with proper care, casts the burden upon the defendant of explaining the circumstances of the accident so as to relieve itself from liability. This burden upon the defendant is sufficiently discharged, however, by showing- that the injury complained of was caused by the plaintiff’s own negligence or want of care. Dougherty v. Missouri R. Co. 81 Mo. 325, 51 Am. Rep. 239; Murphy v. St. Louis, I. M. & S. R. Co. 43 Mo. App. 342; Murphy v. Coney Island & B. R. Co. 36 Hun, 199; Consolidated Traction Co. v. Thalheimer, 59 N. J. L. 474, 37 Atl. 132. There are many other cases to the same effect.” The testimony in the case cited, and in the case we are here considering, shows the two cases are in the same class. The plaintiff and Farley testified that when the car came to a full — 112 — atop the plaintiff’s brother started to get off, and she crossed the aisle of the car, and, as sbe put ber foot on the running board, the car gave a sudden jerk forward and threw her to the ground. the motorman and the conductor both testified that the car had not stopped before the accident occurred, and Gawler testified that be saw the plaintiff standing on the running board of the moving car, and that before it stopped sbe stepped off backward and fell. In order to recover in such a case the plaintiff must show negligence in the defendant. If the plaintiff be a passenger this is done prima facie when the plaintiff shows that the accident occurred. When the plaintiff proves the occurrence of the accident, the defendant must answer that case, from all the circumstances of exculpation disclosed by the evidence, and the jury must determine whether the relation of cause and effect exists between the accident and the exonerating circumstances. In the case last cited, this court also said: “These questions of the burden of proof, and the presumptions resulting therefrom, have been very fully and clearly considered by the Supreme Court of the United States in several cases, the last of which being the case of Gleeson v. Virginia Midland R. Co. 140 U. S. 435, 35 L. ed. 458, 11 Sup. Ot. Rep. 859; — -a case taken up from this District. That was a case where the plaintiff occupied the position of a passenger, and was injured by reason of an obstruction on the road, caused by a landslide, and the defense was that the cause of injury was the act of God, and not that of the defendant. But the defense did not prevail. In the opinion of the court, delivered by Mr. Justice Lamar, it is said: ‘Since the decisions in Stokes v. Saltonstall, 13 Pet. 181, 10 L. ed. 115, and New Jersey R. & Transp. Co. v. Pollard, 22 Wall. 341, 22 L. ed. 877, it has been settled law in this court that the happening of an injurious accident is, in passenger cases, prima facie evidence of negligence on the part of the carrier, and that (the passenger being himself in the exercise of due care) the burden then rests upon the carrier to show that its whole duty was performed, and that the injury was unavoidable by human foresight. the rule announced in those cases has received general acceptance, and was followed at the present term in Inland & Seaboard Coasting Co. v. Tolson, 139 — 113 — U. S. 551, 35 L. ed. 270, 11 Sup. Ct. Rep. 653. ” City & Suburban R. Co. v. Svedborg, 20 App. D. O. 550. The rule of law announced in the case last cited was repeated recently in the case of Washington, A. & Mt. V. R. Co. v. Chapman, 26 App. D. C. 472. The first prayer granted by the court in behalf of the defendant departed from this rule, for that prayer said that, “In order for the plaintiff to be entitled to a verdict in this case, the jury must be satisfied, on consideration of all the evidence and by the preponderance of the evidence, that the car fully stopped at' the corner at Ninth and F streets for passengers to alight, and that, while plaintiff was in the act of alighting, the car was started forward and threw her to the ground, whereby she was injured, and, unless these facts are established by preponderance of the evidence, the verdict should be for the defendant.” It is not necessary to discuss the third prayer, nor the oral instruction of the learned court below. It is sufficient to say that the court’s charge did not properly explain the burden of proof in this case to the jury. The jury were not accurately instructed that the plaintiff was a passenger on the defendant’s car, entitled to the highest degree of care and caution on the part of the carrier, that to make out a prima facie case the burden of proof of negligence on the part of the defendant as the cause of the injury was upon the plaintiff, that this burden . is changed in the case of a passenger when it has been shown that the accident which caused the injury occurred while the latter was a passenger, and that the burden of proof is then cast upon the defendant to explain the cause of the accident, and to show, as the defense sought to show in this case, that the plaintiff was negligent in alighting from the car, and that her negligence caused or contributed to the happening of the injury of which she complained. The judgment of the court must therefore be reversed. Another assignment of error relates to a question we should consider, since it may arise upon the next trial of this case. There being a difference of opinion among the members of the — 114 — court as to its disposition, the writer expresses only his own opinion regarding it. The plaintiff, upon cross-examination, had been asked if her brother, just about the time he was picking her up from the ground, did not ask her, “Why did you step off before the ear stopped ?” She replied, “He did not;” and again she was asked if she had not then answered, “The car had started again,” whereupon her brother replied, “No, it had not.” The plaintiff emphatically denied these things, but admitted that her brother said, “If you had only waited a little longer.” All this occurred without objection from the plaintiff’s counsel. Later, Jenkins, the conductor, testified that, immediately upon seeing plaintiff fall, he went to her as she was rising to her feet by the assistance of Farley, and then Jenkins heard her brother say, “Are you hurt? Why did you get off before the car stopped?” And the plaintiff replied, “I didn’t. The car stopped and started.” Her brother responded, “No, the car had not stopped.” And she replied: “Well, I thought the car had stopped.” G-awler substantially agreed with Jenkins about this brief conversation, and in the case of each witness the plaintiff’s counsel objected, and, when the court admitted this testimony, excepted to its admission. First Wharton on Evidence, section 259, says, substantially, that the res gestae are those circumstances which are the unde-signed incidents of a particular act, and which are admissible •when illustrating such act, although separated from the act by a lapse of time more or less appreciable. They may be sayings and doings of one absorbed in the event, whether participant or bystander; but they must be necessary incidents of the litigated act in the sense that they are emanations of such act, and not produced by the calculated policy of the actors. Such are admissible though hearsay; “it is the act that creates the hearsay, not the hearsay the act;” and Mr. Wharton says: “Exclamations of bystanders, if instinctive, are in like manner admissible.” A case in Pennsylvania appears very like that we are here considering. “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 — 115 — 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 * * * 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 gestee. Neither ground was well taken. To make his declaration admissible as part of the res gestae it was not necessary that Dalton should 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, 2d ed. sec. 259. ‘The res gestee 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 iheidents may be separated from the act by a lapse of time more or less appreciable. They may consist of speeches of anyone 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 — 116 — part of tbe immediate preparations for, or emanations of, such act, and are not promoted by the calculated policy of the actors.’ ” Coll v. Easton Transit Co. 180 Pa. 625, 37 Atl. 89. Mr. Wigmore in his recent work on evidence, in discussing the admission of “spontaneous exclamations” (res gestas), says the utterance must have been before there has been time to contrive and misrepresent; that the statements need not be strictly contemporaneous with the exciting cause; that there can be no definite and fixed limit of time; that the utterance must relate to the circumstances of the occurrence preceding it; that the declarant must appear to have had an opportunity to observe personally the matter of which he speaks. He concludes that anyone possessing such qualifications would be a competent speaker. In particular, a bystander’s declarations would be admissible. In a few courts the declarations of a mere bystander have been excluded, but in the greater number no such discrimination is made. 3 Wigmore, Ev. secs. 1750-1755. Whether the plaintiff’s brother be regarded as a non-actor, or a bystander, the brief and excited exclamations in this case are surely within Mr. Wigmore’s rules. It is apparent that these declarations cannot be excluded without overruling the statement of the doctrine of res gestae, so clearly stated by Chief Justice Alvey, speaking for this court, in McLane’s Case. In Washington & G. R. Co. v. McLane, 11 App. D. C. 222, 223, such a conversation between an injured child and his mother, five or ten minutes after his serious injury, were admitted. In that case- objection was only made to the declarations of the injured boy, who soon after died. This court said: “It is certainly true that it is not always easy to determine. when declarations having relation to an act done, and professing to explain or account for such act, are admissible as part of the res gestae. There is great contrariety in the decisions upon the subject; but the tendency of recent decisions is to extend and liberalize the principle of admission, and declarations and statements are now, by many recent decisions of high authority, admissible, that would formerly have been excluded. The application of the principle of admission is largely dependent — 117 — upon the special circumstances of each case as it occurs. In the English decisions, where the principle has been applied with the greatest strictness, it was held by Lord Holt, in the case of Thompson v. Trevanion, Skinner, 402, and since repeated and approved in the case of Rex v. Foster, 6 Car. & P. 325, that a statement made by a party injured immediately after he was knocked down, as to how the accident happened, was admissible. The declarations, however, to be admissible, must be the natural emanations or promptings of the act or occurrence in question, and, although not exactly concurrent in point of time, yet, if they were voluntarily and spontaneously made, and so nearly contemporaneous as to be in the presence of the transaction which they illustrate and explain, and were made under such circumstances as reasonably to exclude the idea of design or deliberation, such declarations are admissible as part of the res gestm.” In the present case the plaintiff and her brother, who has since died, were fellow passengers on the car. They both were alighting from it about the same time. The brother and Farley helped the plaintiff to arise after she had fallen, and immediately thereafter it is testified that this brief interchange of words between the plaintiff and her brother was heard by Jenkins and Gawler. Her brother may well be considered an actor in this, transaction and we think that the testimony is admissible. Metropolitan R. Co. v. Collins, 1 App. D. C. 389, differs from this case. There the declaration held not admissible as part of the res gestee was a statement of a transfer agent who was not an actor in the occurrence, who was a looker on and had nothing to do with it, and whose statement was a narrative only of a past transaction. This court said of the declaration in that case: “It was not a spontaneous outburst incident to the occurrence or illustrative of any part of it.” We need not consider the remaining exception, which relates to a leading question permitted by the court. This matter was ■within the discretion of the trial court, — discretion which should always be carefully exercised, but which we will not review upon this appeal. The judgment in this case must be reversed, with costs, and — 118 — the cause remanded to the court below, for further proceedings not inconsistent with this opinion, and it is so ordered. Reversed.