Hulse v. Northern Pacific Ry. Co.

MR. JUSTICE SANNER delivered the opinion of the court. On March 21, 1911, the respondent, A. J. Hulse, with others, was riding on one of appellant company’s freight trains en route from Missoula to Helena without paying fare. When the train had reached a point about half a mile west of Helena he was in some manner cast bepeath its wheels and run over, sustaining the injury which is the basis of this action. The issue of fact was whether he had been pushed off by the brakeman while the train was in motion. The case was tried to the district court sitting with a jury, and the verdict was for the appellant. On motion of respondent the verdict was set aside and a new trial awarded; hence this appeal. The motion for new trial was submitted to the district court [1] upon the ground of errors of law occurring at the trial. If it appear that any such errors of a substantial character were committed, the order must be affirmed. (Monson v. La France Copper Co., 43 Mont. 65, 114 Pac. 778; Harrington v. Butte etc. Ry. Co., 36 Mont. 478, 93 Pac. 640; Gillies v. Clarke Fork Coal Co., 32 Mont. 320, 80 Pac. 370; State v. Schnepel, 23 Mont. 523, 59 Pac. 927.) The exceptions noted in the record challenge the propriety of the rulings below in two respects: (1) The exclusion from respondent’s case in chief of certain declarations by him, to the effect that the brakeman had pushed him off; and (2) the exclusion of substantially the same evidence in rebuttal. 1. The declarations were self-serving, and the theory on which [2] it was sought to have them admitted in chief is that they were part of the res gestae. To this we cannot assent. Without elaboration, it will suffice to say that the declarations in question were merely statements or narratives of a past trans [63] action and within the rule against hearsay. (State v. De Hart, 38 Mont. 211, 99 Pac. 438; Poindexter & Orr L. St. Co. v. Oregon Short Line Ry. Co., 33 Mont. 338, 83 Pac. 886; State v. Tighe, 27 Mont. 327, 71 Pac. 3; State v. Pugh, 16 Mont. 343, 40 Pac. 861.) The order granting a new trial cannot be sustained for error in this regard. 2. In rebuttal it was sought to prove by the witnesses Matheny, Grotz and Ward that respondent said a brakeman had pushed him off. As to Matheny, the evidence was properly refused, since the declaration to be elicited from him was fixed at a time and place for which there was no foundation in the appellant’s case. [3] As to Grotz and Ward, the condition is different. For the appellant the witnesses Porter, Gardiner and Wilson had testified to the effect that, after respondent had been taken to the baggage-room, some conversation occurred in which the respondent stated in effect that, as the train was coming into town and as he was getting out of the car, some one of his companions in the car pushed him and he fell. On cross-examination Porter further testified that the respondent did not say a brakeman pushed him off; and Gardiner .and Wilson testified that the respondent did not say who pushed him. We are satisfied that there was but one conversation in the baggage-room. The testimony of Grotz and Ward, therefore, was admissible as part of that conversation (Rev. Codes, sec. 7871; 1 Ency. of Evidence, p. 385), and as a contradictory version of it. (Fidelity & Casualty Co. v. Dorough, 107 Fed. 389, 46 C. C. A. 364; Carver v. United States, 164 U. S. 694, 41 L. Ed. 602; 17 Sup. Ct. Rep. 228; O’Keefe v. Eighth Ave. R. Co., 33 App. Div. 324, 53 N. Y. Supp. 940; St. Louis etc. Co. v. Frazier (Tex. Civ. App.), 87 S. W. 400.) The way for it having been opened in appellant’s case, its admissibility in rebuttal was not affected by the fact that the declaration was self-serving. The trial court was in better position to appreciate the value of this testimony than we are. In view of what appears in the record, it does not seem to have been of very much importance; but its exclusion was error, and we cannot say that the trial [64] court was guilty of a graver error in the effort to correct it. The order appealed from is affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.