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clear. Engine 960 was being prepared for forward, facing the rear and then turning, passenger service, and at the proper time around towards the roundhouse. No one was supposed to back down to the depot, knows why he stepped upon the pilot, nor when the switch engine was to take its place do any of those who saw him testify that and obtain its supply of sand and water. he was doing anything when the engine For some reason, upon which the evidence is moved forward. Some of those standing in conflict, engine 960 moved forward a near saw the probability of a collision with short distance until its pilot collided with the switch engine and shouted a warning, to the footboard at the rear of the switching which he paid no attention, either not hearengine. At the time of the collision, Har. ing or not heeding it. So far as we can graves was standing on the pilot of engine discover from this record, Hargraves had 960, and received injuries resulting in his no duties to perform which would take him death. It seems to be admitted that, be- upon the pilot of the engine at this time, cause of the amount of steam from the en- and the reason for his presence there is a gines, Hargraves's position upon the pilot matter of conjecture. It is shown that of 960 could not be seen by the crew of there was a rule posted in the roundhouse either engine, and there is no contention forbidding employees to ride on engine that the engineer or the fireman of either pilots, and that in addition to this rule engine knew he was on the pilot. As above Hargraves, who had been in the employ of stated, the last work of the deceased, prior the company for only about a month, had to his getting upon the pilot, was assisting on two occasions been told by the hostler in filling up the sand box. The only posi- not to ride on the pilot. If the deceased tive testimony is that, after completing was at work at the time he received his inthis work, Hargraves pulled a plank which jury, in the performance of some required connected the sand house platform with the duty, this verdict must be sustained. With running board of the engine upon which that view we have carefully, examined the they were at work, back to the platform, record to ascertain, if possible, what the and was standing on the platform, while an- deceased was doing upon the pilot, or what other hostler's helper who had been assist he purposed to do when he went there; ing him went to the water tank near by and we can find nothing which refutes the to perform other duties. The next'appear- positive testimony that he had no duties to ence of Hargraves was on the ground near perform which would take him there, or of to the pilot of engine 960. How he got those eyewitnesses to his position on the there or what he was doing there no one pilot that he was not performing any at seems to know. He was then seen to step the time. One of the witnesses for the upon the pilot of engine 960 as it moved plaintiff gives it as his opinion, or, as he court said: “The conversation testified to This was the law on this phase of the was explanatory of, and so connected with, case on a second appeal, 27 Colo. 313, 51 the act of deceased in going to the depot L.R.A. 121, 61 Pac. 606, where it was also grounds on that particular occasion, as to held that a third person was competent to become a part of the res gestæ, and admis- testify as to such conversation between the sible as illustrative of that act. The cir- deceased and the relative mentioned. cumstances under which the declaration was And upon the issue whether deceased was made exclude the idea that it was designed a passenger on a steam railroad at the time to serve any other than the purpose indicat. he was killed, his statement, upon leaving ed, and we think clearly comes within the the house in a hurry, after having looked following definition of res gestæ as given by according to his custom to see if the elecMr. Wharton : "'The res gestae may be there tric cars upon which he usually traveled fore defined as those circumstances which were running, that he was going to take are automatic and undesigned incidents the train as there were no electric cars runof a particular litigated act, and which are ning, was held admissible in Inness v. Bosadmissible when illustrative of such act. ton, R. B. & L. R. Co. 168 Mass. 433, 47 These incidents may be separated from the N, E. 193, 3 Am. Neg. Rep. 42, to show the act by a lapse of time more or less appreci- state of his mind, within the established exable; they may consist, as we will see, of ception to the rule against hearsay. sayings and doings of anyone absorbed in the A person who was present when others event, whether participant or bystander; started out upon a drive, during which they they may comprise things left undone, as came into collision with a railroad train well as things done; their sole distinguish- upon a railroad crossing and were injured, ing feature is that they must be the auto- may be permitted to testify as to what was matic and necessary incidents of the litigat- said when they were about to depart as to ed act,-necessary in this sense, that they where they were going, such testimony being are part of the immediate preparation for, a part of the res gesta, and not mere hearor emanations of, such act, and are not pro- say. Cincinnati, 1. St. L. & C. R. Co. v. duced by the calculated policy of the actors.' Howard, 124 Ind. 280, 8 L.R.A. 593, 19 Am. Wharton, Ev. $ 259. We think this testi- St. Rep. 96, 24 N. E. 892. W. W. A. mony was properly admitted.”

puts it, “my idea," that after the plank | graves. The only testimony we can find as used in filling the sand box was taken down, to oiling relief valves from the pilot is that Hargraves walked along the running board of one witness, who says it could be done to the front of the engine and then stepped by standing on the pilot beam and leaning down to the pilot, supporting his theory over and holding onto a brace. But the eviby saying he did not have the time to get dence shows that Hargraves was standing down to the ground and walk around to on the footboard, and not on the pilot beam. the front end of the engine. But this is Had he been on the pilot beam, he would only speculation, and is refuted by the testi. not have been injured, as the impact of the mony of a number of witnesses who saw collision was very slight, resulting in no him step from the ground to the pilot as appreciable damage to either engine. Anthe engine moved forward. Another theory other witness testified that this type of offered by respondent is that deceased was valve could be oiled with the engine standon the pilot for the purpose of oiling a ing still, by taking a wrench and turning relief valve. Neither of these theories is the valve up, putting a stick under the supported by any testimony. They are cap of the steam chest, pushing the plunger nothing more than conjectures as to what down, and pouring in oil. This testimony he might have been doing. On the other is all speculative so far as it furnishes hand, the testimony of all those who saw any guide to what Hargraves was doing, Hargraves just before he received his in- and is in direct conflict with the testijury is, not only that he was standing on mony of all those who were present at the ground when engine 960 started to the time and testified to what he was acmove, and that he ste; ped upon the pilot tually doing at the time. It might have from the ground, but that he had no oil can been done in the manner described by this or other appliance in his hand. This is witness, but there is no evidence that Harsupported by testimony that it was no part graves was making any such attempt. He of his duty, or of the hostler's crew, to oil had neither oil can, wrench, nor stick, and the relief valve, and that he had no access in addition had changed his position so to the lubricating oil. If there was any that his back was toward the relief valve. conflicting testimony upon this point, the Counsel for respondent in his argument jury might has disregarded this testi- asks, “If he was not oiling the engine, why mony as we have referred to it, and found was he there?” As we view the law, it is otherwise. But respondent offers no con- incumbent upon respondent to show what 11icting testimony; she contents herself with Hargraves was doing, and that at the time testimony that is purely speculative, and of his injury he was in the performance of points out only what he might have been some duty owing to the appellant, and not doing. We do not think the jury, without for appellant to make some affirmative showsupporting testimony, should be permitted ing to relieve it from liability. From the to speculate as to what Hargraves might record, the only possible answer to the have been doing, when the testimony of question is that he was not oiling the relief all the eyewitnesses points clearly to what valve, and his purpose in stepping upon the he was doing; nor that they should theor- pilot is a pure guess. ize as to how he reached his position on After the injury to Hargraves he was the pilot, when there is no conflict on that taken to the hospital, where his mother arpoint. Long v. McCabe & Hamilton, 52 rived about 10:30, shortly before his death. Wash. 422, 100 Pac. 1016; Scarpelli v. She was interrogated as to his condition Washington Water Power Co. 63 Wash. 18, while she was there, and the record of her 114 Pac. 870.

testimony is in part as follows: Appellant also offers testimony to the

Q. Was he fully conscious when you got effect that it would be impossible to oil a

there? relief valve of the type on engine 960 from

At the place where deceased stood, or with the the same time, if I spoke to him I was able

A. No, he was only semiconscious. engine standing still. The deceased was 5 to kind of bring him to for a minute. He feet 8 inches tall. The relief valve upon seemed to know me, but immediately he was the engine was 8 feet from where he stood. Appellant's testimony is all to the effect gone again. He raved continually, about

his work principally. that the relief valve could not be reached by Hargraves from the position in which he

Q. Did he seem to be fully conscious ? stood. This is not only the evidence of ap

A. I believed he was when I spoke to him pellant, but a locomotive engineer intro- first. duced by respondent for the purpose of giv

Q. What did he say to you when you got ing expert testimony admits that the relief there, Mrs. Hobbs ? (Counsel for appellant valve on this engine could not be reached here made an objection which, after some by a person standing in the position of Har-'discussion on the part of respective coun. sel, was overruled, and the question was of evidence is not to be determined by such renewed.)

a test, for witnesses ofttimes testify to Q. Just state what your son said to you, | facts which those to whom they have related Mrs. Hobbs, as to what he was doing at them may not testify to without violating the time he was injured.

the rule against hearsay evidence. For A. He told me that he was applying oil these reasons we are of the opinion that to the relief valve.

this evidence was improperly admitted, and Q. What did he say in regard to its being that it cannot be considered in determining the last work that he had to do?

the question submitted by this appeal. A. He said, “Mamma, I was just finish- One of the leading cases upon this point, ing. I was applying oil to the relief valve, cited as authoritative by the courts and and then I was through.”

text writers, is Waldele v. New York C. & The admission of this testimony is now

H. R. R. Co. 95 N. Y. 274, 47 Am. Rep. 41, urged as error. If admissible at all, it can

where a deaf mute was fatally injured by only be upon the theory that it was part

one of defendant's trains. About thirty of the res gestæ, since dying declarations minutes after the accident he made certain are admissible as such only in cases of statements to his brother, to which, over felonious homicide. It is difficult to define objection, the brother testified as follows: the doctrine of res gestæ so as to fit every

"John said he got hit. John said there was case in which it is sought to be applied.

a long train; that he stood waiting for it to The distinguishing feature of statements go, and an engine followed and struck him." or declarations admissible under this rule

The admission was held error, and the is that they should be the necessary inci- declaration on part of the res gestæ; the dents of the litigated act; necessary in this court giving as its reason for the holding sense, that they are part of the immediate that the res gestæ was the accident; that preparation for or emanations of such act. I the declarations were not part of that, did Such incidents, whether acts or declara- not characterize it, nor throw any light tions, become in this way evidence of the upon it, but were purely narrative, giving character of the main act as, illustrating or

an account of a transaction wholly past, explaining that act. Jones, Ev. § 344.

and depending for their truth wholly upon In Henry v. Seattle Electric Co. 55 Wash. the accuracy and reliability of the deceased 444, 104 Pac. 776, we laid down this rule: and the verity of the witness who testified “In order to be a part of the res gestæ, the to it. The court then enters upon a discussubsequent declaration must explain or in sion of the rule, reviewing many cases supsome way characterize the main fact. It porting these declarations. If the declaramust not be the narration of a past event, tion in that case was the narration of a nor the expression of an opinion.”

past event and not admissible as part of What was the “main fact” or “things the res gestæ, how can we otherwise chardone" in this case? The only possible an

acterize the declaration in this case? There swer is the coming together of these two the declaration was as to what happened engines and the consequent injury to Har just prior to the accident, but not explain

ing it; here the declaration is of the same graves.

This was the litigated fact upon nature. In that case the deceased stated which it was sought to establish the cause

that he was waiting for a long train to of action. The declaration of Hargraves pass, and was struck by an engine followdid not explain nor characterize this main ing; here the declaration was that he was fact. It offered no explanation of the rea- applying oil to the relief valve and then he son why the engines came together. It in

was through. Each case narrates a past no way characterizes what happened when event which must be covered by the same they did come together. It illustrated rule. If there is any distinction between neither cause nor effect. It can only be the two cases in respondent's favor, it is characterized as a statement of what Har- to be found in the cited case, because of graves was doing just prior to the accident, the fact that the declaration there is in no way connected with it; and as such stronger in favor of her contention in that it was a narration of a past event. The it contained a statement that the deceased mere fact that, if Hargraves had survived was struck by an engine following the long his injuries and sought recovery against ap- train, and to that extent might be said to pellant, it would have been competent for state the cause of the injury, were it 'not him to testify to what he was doing at the narrative in character. But the case before time, does not establish its admissibility as us is that much weaker, in that it does a part of the res gestæ. The admissibility not purport to explain the accident nor il

we can

as

lustrate it. Many authorities might be not incidental to his employment. This rule cited, but the following are sufficient to is sustained by all the authorities, and the illustrate the rule here applicable. Stein- Federal act in nowise attempts to change hofel v. Chicago, M. & St. P. R. Co. 92 Wis.it. Unless the evidence in this case shows 123, 65 N. W. 852; Johnston v. Oregon Short that the deceased was upon the pilot of Line R. Co. 23 Or. 94, 31 Pac. 283; Tennis this engine in the discharge of some duty v. Inter-State Consol, Rapid Transit R. Co. required by the railway company, then the 45 Kan. 503, 25 Pac. 876; Corder v. Tai railway company owed him no duty except bott, 14 W. Va. 277; Wagner v. H. Clausen to avoid injuring him after it discovered & Son Brewing Co. 146 App. Div. 70, 130 his perilous position. Such is so clearly V. Y. Supp. 584; Gebus v. Minneapolis, St. the law that it will not be doubted, and P. & S. Ste. M. R. Co. 22 N. D. 29, 132 N. no authorities need be cited to sustain it. W. 227; Kehan v. Washington R. & Electric There is no evidence in this record that the Co. 28 App. D. C. 108; Jones, Ev. § 345; deceased was required to do any act which note to Walters v. Spokane International would place him upon the pilot of the enR. Co. 42 L.R.A. (N.S.) 918.

gine. All the evidence on this subject is Respondent cites the following cases from to the contrary.

So far as

ind, this court as sustaining the admissibility, whatever it was that caused him to step of this declaration : Roberts v. Port Blake. upon the pilot, it was his own purpose, not ly Mill Co. 30 Wash. 25, 70 Pac. 111, 12 Am. in any way connected with his work Neg. Rep. 372; Starr v. Ætna L. Ins. Co. a hostler's helper. If it was his purpose 41 Wash. 199, 4 L.R.A.(N.S.) 636, 83 Pac. to engage in any task, so far as this rec113; Walters v. Spokane International R. Co. ord goes, in so doing he was a volunteer 58 Wash. 203, 42 L.R.A. ( N.S.) 917, 108 Pac. without appellant's direction or knowledge, 593; Riggs v. Northern P. R. Co. 60 Wash. and so far as the law is concerned the re292, 111 Pac. 162. In each of these cases sult is the same. If we could find anything the statement admitted in some way ex- in the evidence which would justify a differplained the accident and cause of the injury, ent conclusion, however meager it might and was for this reason held to be within be, we would submit to the verdict as dethe rule. This declaration makes no at-terminative of the fact. But we cannot tempt to explain the accident causing the find it, and, such being the case, however injury, and hence the same reasoning would unfortunate or distressing the circumstances not apply.

may be, it is our duty to so hold. One of the questions in the case is The lower court should have sustained whether the deceased was injured while act-appellant's challenge to the sufficiency of ing within the scope of his employment. the evidence and given judgment in its faRespondent contends that, this action be- vor. The judgment is reversed, and the ing under the Federal employers' liability cause remanded, with instructions to enter act, the statute renders such question im- judgment in favor of appellant. material, and that the only test is, Was the employee injured while employed by a Crow, Ch. J., and Mount, and Parker, carrier engaged in interstate commerce? JJ., concur. The Federal act does not give a cause of action to the employee for injuries not

Petition for rehearing denied, January 4, occasioned by negligence, and no recovery

1915. can be had under this act by simply showing the injury, and that at the time the injured servant was engaged in interstate DISTRICT OF COLUMBIA COURT OF commerce. The rule of liability against a

APPEALS. railway company engage in interstate commerce is predicated upon the duty of

GEORGE R. ROBINSON, Appt., the company to furnisu its servant with

BALTIMORE & OHIO RAILROAD COMa reasonably safe place in which to per

PANY. form the work it requires of him, or while he is about those places which are incident

(40 App. D. C. 169.) to his work, and this duty is incident to all places where the employee must neces- Master and servant Federal employsarily be in connection with his employ- ers' liability act Pullman porter. ment. But that duty is not incident to 1. A Pullman porter is not an employee places where a servant is not required to

Note. - As to whether employees of combe, nor expected to be, in the performan

panies other than railroad companies are of his work. Nor does it cover the serv.

within the Federal employers' liability act, ant when he is not within the scope of his

see page 64 of the note to Lamphere v. Oreemployment, or doing some act which is gon' R. & Nav, Co. 47 L.R.A. (N.S.) 38,

v.

ance

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of the railroad hauling the car on which he | P. R. Co. v. Peterson, 162 U. S. 346, 40 L. is employed, so as to come within the proced. 994, 16 Sup. Ct. Rep. 843; New England vision of the Federal employers' liability R. Co. v. Conroy, 175 U. S. 323, 44 L. ed. act invalidating contracts by which carriers 181, 20 Sup. Ct. Rep. 85, 7 Am. Neg. Rep. attempt to exempt themselves from the lia

182. bility to their employees created by that act.

Mr. Justice Van Orsdel delivered the Same - contract for indemnity relin.

opinion of the court: quishment of right of action. 2. One who, when employed as a Pullman

This suit was brought by appellant, porter, agrees to protect the Pullman Com- George R. Robinson, in the supreme court pany in its contracts by which it under of the District of Columbia against defendtakes to indemnify railroad companies ant, the Baltimore & Ohio Railroad Comagainst liability for injuries to Pullman pany, to recover damages for injuries susemployees, deprives himself of the right to tained by plaintiff on April 10, 1910, while maintain an action against the railroad com engaged in the performance of his duties pany for injuries received in the course of as a Pullman porter. At the time of the his employment.

accident he was the porter in charge of a (March 10, 1913.)

car belonging to the Pullman Company which formed part of a train of defendant

A

the Supreme Court in favor of defend between Washington, District of Columbia, ant, in an action brought to recover dam- and Wheeling, West Virginia. On the trial ages for personal injuries sustained by below, when the testimony on behalf of plaintiff while engaged in the performance plaintiff had been given, the court, on moof his duties as a Pullman porter. Affirmed. tion of counsel for defendant, instructed

The facts are stated in the opinion. the jury to return a verdict for defendant.

Messrs. Alexander Wolf and Levi H. From the judgment thereon, the case comes David for appellant.

here on appeal. Messrs. George E. Hamilton, John J. It appears that on August 21, 1905, plainHamilton, and John W. Yerkes, for ap. tiff made written application to the Pullpellee:

man Company for employment as a PullPlaintiff, at the time of the injury, was man-car porter. In the following November, not, as a matter of law or fact, an employee he was taken into the service of the Pullof the railroad company, and therefore none man Company, signing a written contract of the provisions of the employers' liability as a condition of his employment, the maact can be invoked and enforced in his be- terial provisions of which are as follows: half.

"Fourth. I assume all risks of accidents Baltimore & 0. S. W. R. Co. v. Voigt, 176 or casualties by railway travel or otherU. S. 498, 44 L. ed. 560, 20 Sup. Ct. Rep. wise, incident to such employment and serv385; McDermon v. Southern P. Co. 122 Fed. ice, and hereby, for myself, my heirs, execu669; Hughson v. Richmond & D. R. Co. 2 tors, administrators or legal representatives, Apr. D. C. 98; Chicago, R. I. & P. R. Co. forever release, acquit, and discharge the V. humler, 215 Ill. 525, 1 L.R.A.(N.S.) 674, Pullman Company, and its officers and em. 106 Am. St. Rep. 187, 74 N. E. 705, 1 Ann. ployees, from any and all claims for liabil. Cas. 42; Russell v. Pittsburgh, C. C. & St. ity of any nature or character whatsoever L. R. Co. 157 Ind. 305, 55 L.R.A. 253, 87 on account of any personal injury or death Am. St. Rep. 214, 61 N. E. 678; Chicago & to me in such employment or service. V. W. R. Co. v. O'Brien, 67 C. C. A. 421, 132 "Fifth. I am aware that said the Pull. Fed. 593; Employers' Liability Cases (How man Company secures the operation of its ard v. Illinois C. R. Co.) 207 U. S. 463, 52 cars upon lines of railroad, and hence my L. ed. 297, 28 Sup. Ct. Rep. 141; Denver & opportunity for employment, by means of R. G. R. Co. v. Whan, 39 Colo. 230, 11 contracts, wherein said the Pullman ComL.R.A.(N.S.) 432, 89 Pac. 39, 12 Ann. Cas. pany agrees to indemnify the corporations 732; New York, C. & H. R. R. Co. v. Difen- or persons owning or controlling such lines daffer, 62 C. C. A. 1, 125 Fed. 893; Oliver of railroad against liability on their part 1. Northern P. R. Co. 196 Fed. 432; Balti- to the employees of said the Pullman Commore & O. R. Co. v. Baugh, 149 U. S. 368, 37 pany in cases provided for in such contracts, L. ed. 772, 13 Sup. Ct. Rep. 914; Northern and I do hereby ratify all such contracts, covering the general subject of the consti- | road company from liability for negligent tutionality, application, and effect of the injury to sleeping car employees or others Federal employers' liability act, and page sustaining a similar relation to the com72 of the subsequent note in L.R.A.19150, pany, see notes to Denver & R. G. R. Co. 47.

v. Whan, 11 L.R.A.(N.S.) 432, and Coleman Generally as to contract exempting rail. I v. Pennsylvania R. Co. 50 L.R.A. (N.S.) 432.

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