Washington Railway & Electric Co. v. Wright

Mr. Justice Robb delivered the opinion of the Court: The first assignment of error relates to the two remarks of the plaintiff, that she had always been very careful, or that she was too cautious a person to leave a moving car. The court, in its charge to the jury upon this phase of the case, said: “There was some testimony in the case, as you will recall, that the plaintiff in talking with the conductor said she used the word ‘cautious.’ She said she was always cautious. The question that arose at the moment was whether she was referring to a habit of hers or simply using the word in this con [271] versation. I simply want to say to you that you have nothing whatever to do wtih the plaintiff’s habit of caution no matter how cautious she may be as a matter of habit, you have nothing whatever to do with that. The question of whether she was properly cautious on this occasion, whether she did what a person of ordinary prudence and judgment would have done under the circumstances, is the question for you to determine.” Taking into consideration the character of the challenged statements, we think the point is ruled by Pennsylvania, Co. v. Roy, 102 U. S. 451, 26 L. ed. 141. It would be too great a reflection upon the intelligence and fairness of the jury to assume that the charge of the court, in the circumstances, did not fully protect the defendant. The remaining assignment of error questions the correctness of the court’s ruling in permitting the doctor to testify to the statements by the plaintiff to the conductor, to the effect that the premature starting of the car had thrown her. The general principles applicable to the determination of the rather troublesome question as to what is a part of the res gestee have been laid down by the Supreme Court of the United States, — Beaver v. Taylor, 1 Wall. 637, 17 L. ed. 601; Travellers Ins. Co. v. Mosley, 8 Wall. 397, 19 L. ed. 437 — and applied by this court in Washington & G. R. Co. v. McLane, 11 App. D. C. 220; District of Columbia v. Dietrich, 23 App. D. C. 577; and Patterson v. Ocean Acci. & Guarantee Corp. 25 App. D. C. 46. As was said by Chief Justice Alvey in the McLane Case, “The application of the principle of admission is largely dependent upon the special circumstances of each case as it appears.” In Rex v. Foster, 6 Car. & P. 325, an indictment for manslaughter for killing a pedestrian by driving a cab over him, a witness Avas called for the prosecution who had not seen the accident but who, immediately thereafter, had asked the injured person what was the matter. The wdtness v?as permitted to state the answer and the prisoner was convicted. In Com. v. M'Pike, 3 Cush. 181, 50 Am. Dec. 727, similar testimony was approved by the supreme court of Massachusetts. These cases were cited Avith approval by the supreme court in the Mosley Case. In the Pat [272] ierson Case it was ruled that the “declarations of the assured, testified to by his wife and brother-in-law, were properly admitted as tending to show not only that he was then suffering severe bodily pain, but also that he had sustained an accidental strain in the treatment of a patient.” In the present case, the plaintiff was very severely injured and, admittedly, was suffering great pain. She was unable to rise and was lying where she had fallen. The remark was made almost immediately after the happening of the accident, and there is nothing to indicate premeditation or design. As was said in Hanover R. Co. v. Coyle, 55 Pa. 402, it “seems to have grown directly out of” the accident, and hence was “a part of the transaction itself.”' We think it clearly a part of the res gestee. It was' a statement of the immediate cause of the injury, which was the throwing of plaintiff to the ground. “Here the principal fact is the bodily injury. The res gestee are the statements of the cause made * * * almost contemporaneously with the occurrence. Travellers' Ins. Co. v. Mosley, 8 Wall. 397, 408, 19 L. ed. 437, 441. We have carefully examined the cases relied upon by appellant, and find nothing therein inconsistent' with the ruling in this case. In Guild v. Pringle, 64 C. C. A. 621, 130 Fed. 419, a pedestrian was fatally injured by falling into a hole in the nighttime. It was held to be error for a witness to testify to a statement of the injured person that the place was not lighted. The court, however, placed its ruling partially upon the ground that the statement of the deceased was not responsive to the question asked him, and, further, that from all the evidence there was a doubt whether the statement was made under the circumstances and in the exact manner indicated by the particular witness. Judgment affirmed, with costs. Affirmed.