Rouston v. Detroit United Railway

Grant, O. J. (after stating the facts). The testimony of the witness Larr was incompetent. It was bare hearsay. It occurred 18 hours before the accident and at a place five miles distaht. It was no part of the res gestae, under the repeated decisions of this court. Dompier v. Lewis, 131 Mich. 144; Hall v. Murdock, 119 Mich. 389; Ablard v. Railway Co., 104 Mich. 147; Gardner v. Railway Co., 99 Mich. 182. See, also, authorities cited in those cases. One’s liability for negligence cannot be established by hearsay admissions of an employe who has no authority to make such admissions and they constitute no part of the res gestae. The' motorman was the plaintiff’s own witness, and could have been questioned by her counsel as to the condition of the brakes. Instead thereof, her counsel seek to fasten liability for negligence upon the de241 fendant by showing that the motorman made a statement long prior to the accident, which, if true, would show negligence upon the part of the company if not upon the part of the motorman. Counsel cite numerous cases in other jurisdictions. I have examined them all. Several of them held the testimony, to which objection was taken, admissible on the ground that it was a part of the res gestae. Others of the cases are based upon other principles, — such as the case of Denver, etc., Transit Co. v. Dwyer, 20 Colo. 132, where a conversation between the plaintiff and the engineer was held admissible to show that the engineer knew where the plaintiff was sitting when the accident occurred. In Houston, etc., R. Co. v. Willie, 53 Tex. 318, the alleged negligence was in the employment of an incompetent engineer. The declaration of the engineer was held admissible to show want of care on the part of the company in selecting him as engineer, “if supported by other satisfactory evidence.” So, where the defendant through his agent was charged with cutting the slash boards of a dam, and he and his agent were seen' going to the mill together, — it was held admissible to prove that the agent declared beforehand that he intended to do it. This was admissible to show that he did the act.. In discussing this question, in Dompier v. Lewis, supra, this court, through Brother Montgomery, said: “It [the testimony] became a matter of narration, and was not even narration of the incident, but of the cause which led to the accident,” and we held that the testimony was properly excluded. 2. The court instructed the jury that the defendant is not an insurer of the safety of its passengers; that it could only be held liable upon proof that the company or some of its employés had been guilty of negligence which was the proximate cause of the accident. He also instructed [242] them that the collision established a prima, facie cáse of negligence against the company and cast the burden of proof upon the defendant to show that the appliances were in proper condition and were properly managed, and that the injury was the result of an unavoidable and unforeseen accident. Counsel for the defendant took no objection to this instruction, their position being that, upon all the evidence, no negligence was shown. On the contrary, in reply to a question by the court to defendant’s counsel upon the trial, asking him if that were a fair statement of the law, counsel replied, “ I am not raising any question about that.” Neither is any question raised about it in defendant’s brief. Counsel for plaintiff cites textbook authorities and decisions in support of the proposition. We are not called upon now to decide the important question. The court has frequently held that proof of an accident is not of itself evidence of negligence, unless accompanied by circumstances from which negligence may legitimately be inferred. It is sufficient to say that the concession of counsel settles the law for this trial, but it must not be understood that we Concede it to be the law. We express no opinion upon the question. Plaintiff, however, did not rest her case upon this proposition. She made the motorman of the car her own witness. It appears from his testimony that a day or two before the accident he ran past a station with his car, and the cause of his so doing appeared to be some defect with the brake, and he took his switch bar, went out and fixed it. This question was asked: “ Well, if it had been working all right on that occasion, do you know of any reason why you should have gotten off your car and taken a switch bar and gone back to inspect it ? “ A. No, sir. * * * “ Q. Were the brakes on this car in the habit of getting so you had to tighten Idem up or loosen them up with a switch bar? “ A. Brakes will wear out.” Common carriers of passengers, especially where, as in [243] this case, they are running freight cars only a short distance after passenger cars, and up and down steep inclines, are required to exercise a very high degree of care in seeing that their appliances are in proper condition and are properly managed. West Chicago St.-R. Co. v. Martin, 47 Ill. App. 610; 3 Thompson on Negligence, § 3477; Hamilton v. Railway Co., 17 Mont. 334, 342; 1 Current Law, pp. 459, 460; 6 Cyc. p. 591; 5 Am. & Eng. Enc. Law (2d Ed.), p. 558. Upon the first indication of wearing out or of defects of any character, it is their duty to inspect them and see that they are in good condition. In view of this duty and of the testimony of the motorman, we are not prepared to hold, as a matter of law, that there was no evidence of defective brakes to submit to the jury. Defendant introduced evidence showing an inspection of this car before and on the day of the accident, but the record fails to show that it was the usual inspection or one sufficient to determine whether the brake machinery and brakes were in good condition. The inspector testified: “As applied to the brakes, the inspection made would be simply looking at them. I did not tap the bars and different parts with a hammer to see if there was anything wrong with them. I did not get into the car and start it to test them or anything of that kind.” Failure to inspect is not alleged as a ground of negligence, but the testimony was offered by defendant as a ground of defense, and properly so. When such inspection is relied upon as a defense, it should be as thorough as the dangers incident to the business make necessary. We held in Dolph v. Railway Co., 149 Mich. 278: “When the railroad has established by reputable and uncontroverted evidence that its appliances were such as good railroading requires, that they were in the condition required by the law, and properly managed, we think the question is one of law for the determination of the court, and not one of fact to be decided by the jury.” We cannot hold that the evidence brings the defendant [244] within the rule there stated. Neither are we prepared to say that there was no negligence in the management of the car by the motorman. The rules of the company required the motorman to approach stations with great care and caution. The motorman expected that the passenger car preceding him would be at the station; in fact he knew it was there. He saw its lights as he approached within about a thousand feet. The motorman started down this incline at the rate of 15 miles an hour with this heavy car, and shut off his current only as he commenced to go down the incline. We cannot say as a matter of law that it was proper management to start down a steep incline with this load at the rate of 15 miles an hour, knowing that there is a car loaded with passengers at the foot of the incline, and rely upon air brakes to properly check the speed of the car. Wynne v. Railroad Co., 35 N. Y. Supp. 1034. Neither can we hold that it was proper management for the motorman to make so many attempts as he .testified he did with the air brakes before reversing the current, nor that it was not negligence for him when he found that the reverse did not work, to fail to try the hand brake. All .those questions were left to the jury, with the following instruction, as requested by the defendant: - . “ The law does not require that the motorman should have done precisely that which at this time, I mean now, after full investigation and mature deliberation, the jury may think that he should have done, but if he exercised that care and judgment, and did that in the handling of his car in his efforts to prevent the collision in question which a prudent, careful motorman would have done .under the same circumstances, then he was not negligent even though the collision ensued.” Judgment reversed, and new trial ordered. Montgomery, Ostrander, Hooker, and Carpenter, JJ., concurred.