Clark v. Davis ( 1922 )

Halla?.!, J.

On July 19, 1919, Charles Almon Clark was switchman in the employ of defendant in the railroad yards at Aurora, Illinois. At about 5:15 in the afternoon of that day he was injured so that he died in the early morning of July 22. Plaintiff had a verdict. Defendant appeals.

No question is made that the evidence as it stands is sufficient to sustain the verdict. Question is raised as to the admissibility of certain evidence. No one saw the accident. A fellow switchman, George Stopps, was the first to see deceased after the accident. Deceased was then sitting on the ground. His left leg and his right arm were crushed. Stopps took him in charge, notified other employes and an ambulance was called. Stopps remained with deceased until the ambulance arrived and -went with him to the hospital. There ether was administered and an operation was performed. The left leg was amputated and broken bones of the right arm set. Stopps then called by phone, first the sister, and then the mother of deceased, and left a message for his wife. All came to the hospital, sister arriving first, mother next, and wife last. As to the time when these events happened, the witnesses do not agree. One witness said the operation commenced at 6 o’clock, another said at 6 or 7 o’clock. One said the operation took 30 minutes, another said 45 minutes. The hospital record shows that deceased returned to his hospital room at 7 p. m. Plaintiff’s doctor, Rogers, said deceased was under the anaesthetic 45 minutes. Defendant’s doctor said deceased was completely out of the ether when he called at 9:30. A nurse said he could not talk intelligently until 11 p. m. Dr. Rogers testified that, when he called at 8 p. m. or shortly after, deceased had had an administration of morphine to relieve pain. His mother and sister claimed to have talked with him before 7.

The evidence excepted to is as follows:

The sister testified that she arrived at the hospital at 6:30. She was permitted to testify that when she entered the room this conversation followed. “He said to me ‘Hello, Etc.’ He said ‘My leg is gone. Does Ma know it?’ I said, ‘No, brother, but thank God you are with us.’ He said, ‘They got me. They got me from the top. The brake gave way and let me down.’ ” The mother was permitted to give evidence of a similar conversation on her arrival a few minutes later.

Between the time of the accident and the arrival at the hospital deceased talked with Stopps. He gave Stopps messages to take to his wife and confided to him several little family secrets, but gave no explanation of the cause of the accident. Stopps testified that he asked deceased how it happened, but received no answer. He admitted, though, that at the coroner’s inquest he had said he would not say whether he asked him. Stopps testified that deceased did not appear to be suffering pain. Another testified, however, that on arrival at the hospital he was moaning a great deal and seemed to be in extreme agony and the sister testified that when he talked to her he was groaning and moaning and rolling around on the bed.

Defendant urgently contends that it was error to receive this testimony of the sister and mother of deceased. This testimony is of the utmost importance in the case, for without it there is very little to indicate how the accident occurred.

It is first contended that the testimony could not be true. It is argued that if deceased wanted to tell any one he would have told his friend and fellow workman, Stopps, who was the first to talk with him after the accident. It is further urged that deceased could not have been conscious at the time his sister and mother claimed to have talked with him. Both arguments could be urged with some persuasive force before triers of facts. But we cannot accept them as conclusive against the positive statements, of the mother and sister. The fact that he did not tell Stopps does not prove intentional reticence. He had other grievous things on his mind.

As to the possibility of being conscious as his mother and sister said, we must bear in mind that people are easily mistaken as to exact time of past events. The narrative of facts we have given shows that this case is an example and that there are discrepancies even among defendant’s witnesses. The fact is undisputed that neither sister nor mother were advised of the accident until after the operation was performed and after such notification they were obliged to make the trip by street car to the hospital. It is well known that a person comes from under the influence of ether gradually. It is quite conceivable that deceased may have sufficiently recovered consciousness to make the statements testified to on their arrival, particularly if the testimony of Dr. Rogers that deceased was under the anaesthetic about 45 minutes is true. The fact also testified by Dr. Rogers that, when he arrived at 8 or shortly after, morphine had been administered to relieve pain, may account for the testimony of the nurse and of Dr. Brennecke that he was unconscious until later in the evening, for the morphine was apparently administered upon revival of the pain after the sedative effects of the ether had passed away.

The story as to the language deceased addressed to his sister is natural and has the earmarks of truth. The jury doubtless found that the statements were made and we feel bound to accept their conclusion.

Whether the statements were admissible is a more difficult question. If they were plain hearsay, of course they were not admissible. They could only be received by exception to the hearsay rule as part of the res gestae. The question whether statements are to be received as part of the res gestae is often difficult to determine. The principles are well settled, but their application is difficult. There is a large element of discretion in the trial court. Such statements are received, if at all, on much the same principle as we receive exclamations of pain. To be received there must be some startling occurrences calculated to produce nervous excitement and spontaneous utterances. The utterances must spring out of the transaction, must be spontaneous, generated by an excited feeling which extends without break or let down from the moment of the event to the moment of the utterance, and under such circumstances as to reasonably preclude the idea of calculation of deliberate design. What the law distrusts is “not after-speech but afterthought.”

Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 775, 12 S. E. 18, 26.

There is no arbitrary time line. The utterance must simply have been made before there has been time, or rather opportunity, to contrive and misrepresent, before the exciting influence of the act has become dissipated, “while the nervous excitement may be supposed still to dominate and the reflective power to be yet in abeyance.” 3 Wigmore, Ev. § 1750; Mitchum v. State, 11 Ga. 615, 626; Carr v. State, 43 Ark. 99, 104; Kennedy v. Rochester City & B. Ry. Co. 130 N. T. 654, 656, 29 N. E. 141; see also O’Connor v. Chicago, M. & St. P. Ry. Co. 27 Minn. 166, 6 N. W. 481, 38 Am. St. 288; State v. Alton, 105 Minn. 410, 117 N. W. 617, 15 Ann. Cas. 806; Lambrecht v. Schreyer, 129 Minn. 271, 152 N. W. 645, L. R. A. 1915E, 812; Meyer v. Travelers Ins. Co. 130 Minn. 242, 153 N. W. 523; Roach v. Great Northern Ry. Co. 133 Minn. 257, 158 N. W. 232.

Taking first the statement of the sister, we think it comes fairly within the rule. If her statement is true it was made well within two hours after the accident. But this time is not so important as the circumstances. The time between the accident and the operation was very short, not over three quarters of an hour, part of the time on a grain door transported on a way car, part of the time in an ambulance or in the hospital about to submit to a major operation with a crushed arm and leg, and, as one witness said, “in extreme agony,” and most of the remaining time under the influence of ether. This statement, if made, must have been made about ás he regained consciousness. It seems to us that the trial court might properly hold that the accident and the almost immediate operation furnished the necessary “startling occurrence” calculated to produce nervous excitement and spontaneous utterance, and that the statement was made while the nervous excitement may be supposed still to dominate and before the arrival of time for reflection, calculation or deliberate misrepresentation.

The propriety of receiving the testimony of the mother as to the Statement made to her perhaps half an hour later is more doubtful. It is of the same import as the testimony of the daughter. The language as repeated by her was “Mother, they have got me this time. I was on the top of the car with the intent of setting my brake and my brake gave way and throwed me to the ground and the cars went over my limbs.” This evidence was merely cumulative. With some hesitation we hold its reception was not error.

Defendant asks a new trial on the ground of surprise at the introduction of this evidence and of newly discovered evidence. We think the showing made is insufficient to warrant us in overruling the trial court on this point. In fact there is an affidavit to the effect that defendant's counsel were advised before trial that evidence similar to this would be given by these witnesses.

It is contended that the damages are excessive. The verdict was for $28,815. Deceased was 34 years old, earning about $150 a month. .He left a wife, a son a year old and a daughter born after his death. There may be recovery for pain suffered by deceased for the 58 hours he lived. St. Louis, I. M. & So. Ry. Co. v. Craft, 237 U. S. 648, 35 Sup. Ct. 704, 59 L. ed. 1160. In that case a recovery of $5,000 for suffering for one half hour was sustained below, held not reviewable in supreme court.

In Louisville & N. R. Co. v. Holloway, 246 U. S. 525, 38 Sup. Ct. 379, 62 L. ed. 867, a verdict of $25,000 in a death case was sustained below (168 Ky. 262). The award of damages was held not reviewable in the supreme court on appeal. The deceased was 34 years old, was earning $200 a month and left a widow but no children.

A majority of the court are of the opinion that the award of damages in this case should not be disturbed.

Affirmed.