Electric Railway Co. v. Carson , 98 Ga. 652 ( 1896 )

Simmons, Chief Justice.

This was an action against a street railway company for damages on account of personal injuries to the plaintiff, occasioned by the derailment of one of its cars while she was a passenger thereon. She obtained a verdict against the company for $300, and the defendant made a motion for a new trial, which was overruled, and it excepted.

1. It is complained that the trial judge erred in rejecting testimony offered by the defendant as to statements made by one of its employees while investigating the cause of the derailment. The court was clearly right in rejecting such testimony. It was hearsay, and not admissible as a . part of the res gestee. To render such declarations as these admissible as a part of the res gestae of the occurrence in question, they must be so nearly connected with the act as to be “free from all suspicion of device or afterthought.” (Code, §3773.) They must be so spontaneous and involuntary, so much a part of the act itself, as to render it reasonably certain that they were not the result of deliberation or reflection. See Travelers Insurance Co. v. Sheppard, 85 Ga. 777. Certainly this cannot be said as to statements made after the accident and the injury in question had occurred, by an employee of the party who offered them, and while he was going over the ground investigating the cause of the derailment, and probably seeking for such an explanation as would relieve himself and his employer from blame.

Counsel for the plaintiff in error relied on what was said in the decision of this court in Krogg v. Atlanta & West Point R. Co., 77 Ga. 202, in regard to the admissibility of statements of the general manager of the railroad company as to the cause of the accident, made at the scene of the injury soon after it occurred and while he was engaged in an investigation of the matter. The statements referred to in that decision, however, were not, as in this instance, declarations offered by the railroad company in its own favor, but were offered by the plaintiff as admissions on the part of the company, against its interest; and what was said as to their being a part of the res gestae is to be understood in the sense in which this term is used in the law of agency, and as meaning the res gestae of the investigation which the agent who made them was then making in behalf of his principal, and not as meaning the res gesteo of the accident. It was not necessary in that ease, in order to render the statements admissible, that they should be treated as a part of the res gestae of the accident, for, as will be seen from the opinion of the court, they were clearly admissible on other grounds.

2. The presumption against a railroad company where an injury is shown to have been occasioned by the running of its cars applies as well to street railroad companies as> to others. City etc. R. Co. v. Findley, 76 Ga. 311. The evidence in this case fails to show that the company was in, all essential respects diligent; and there being sufficient evidence to sustain the verdict, and no error of law having been committed, this court will not overrule the discretion of the trial judge in refusing to grant a new trial.

Judgment affirmed.