Downing v. St. Louis-San Francisco Railway Co. , 220 Mo. App. 260 ( 1926 )

^* Corpus Juris-Cyc. References: Evidence, 22CJ, p. 390, n. 89; p. 454, n. 72; Trial, 38Cyc, p. 1757, n. 94, 95. Action for damages for personal injury. Plaintiff recovered and defendant appealed.

Plaintiff was driving an automobile and approached defendant's track at a crossing in or near the City of Kennett in Dunklin county. When the automobile got so near the track that the train could not pass without hitting it its engine died and the car stopped. The train was approaching the crossing at the time and struck plaintiff's automobile and threw her out and caused the injury which is made the basis of this suit. Plaintiff's evidence tended to show a cause of action under the humanitarian rule and recovery was upon that basis. We shall not detail the evidence in full and only recite as much thereof as appears to us to be necessary to pass upon the question involved here. Plaintiff testified that when she was twenty to twenty-five feet from the crossing she saw the train approaching and it was far enough away that she had plenty of time to get across in front of the train if her engine had not died. The train was backing and she saw some one on the rear platform whom she afterwards thought to be the conductor of the train. The conductor testified for defendant and stated that he was on the rear platform of the train at the time of and shortly before the accident. After the train was stopped, the conductor came back to where plaintiff was lying on the ground. She was asked if the conductor made any statement to her at that time. Over the objection of defendant she was permitted to answer and then stated that the conductor said, "We was just wondering what you was going to do. . . ." There was some other conversation at the time that is not material. The objection to the statement by the conductor that "we was just wondering what you was going to do" was upon the ground that it was hearsay and not a part of the res gestae and was not binding upon defendant. Counsel for plaintiff appeared to have offered it as a part of the res gestae and also, as stated by one of plaintiff's counsel at the time, "We offer it for the further reason that it was made by the conductor of the train in the course of his duty as the man in charge of the train and defendant is bound by the knowledge which he had and what he said and did at the time." The court: "The objection is overruled if confined to the testimony of what he knew about her condition and what he saw." The witness then answered as above stated. On the next day when the conductor was on the witness stand as a witness for defendant he was asked on cross-examination what his duties were at the time of an accident. This was objected to but the objection was overruled and the witness answered: "The duty of the conductor is to ascertain the names of the parties and how come them in a position to get hurt and the names of witnesses who saw it and to get information to send to the office of the superintendent and the time of day, whether it is cloudy or raining, night or day."

The only error assigned is the alleged error of the court in permitting plaintiff to testify that after the train stopped and the conductor got back to where she was he said to her "We was just wondering what you was going to do." It is contended that this statement is not a part of the res gestae and hence was mere hearsay and inadmissible. We agree that this statement of the conductor was made too long after the accident to be admitted as a part of the res gestae but it does not necessarily mean that it was not admissible for any purpose. We also agree with counsel for defendant that if it were only admissible for a limited and particular purpose and inadmissible on the issues generally, then it was the duty of the court at the time it was admitted to inform the jury of the purpose for which it was admitted and if that were not done and no instruction given to the jury on the question, it would be error. [Minea v. St. Louis Cooperage Co., 179 Mo. App. 705, 162 S.W. 741; Wright v. Hines, 235 S.W. 835.]

It is clear that this evidence was likely to influence the jury on the merits of the case. If it should have been restricted to a particular purpose that purpose would be to show knowledge on the part of the conductor of the perilous position of plaintiff and we think it was clearly admissible for that purpose, at least, and if its effect is to be confined to that purpose alone, then it was error to not so inform the jury, but we are of the opinion that under the evidence in this case it was admissible on the general issue and its effect should not have been limited to the one specific thing. The conductor testified that when an injury occurred it was his duty to get the name of the party injured and the facts connected with the accident, how it occurred and the names of witnesses who saw it and report to the office of the superintendent. If we assume that the conductor did his duty immediately after the accident, then we must conclude that he was engaged in the performance of his duty to ascertain the facts about how the accident occurred when he made the statement attributed to him, and since this statement, if made, was an utterance of his own knowledge as to one fact connected with the accident and having been made in relation to the very thing he was investigating at the time it was competent on the general issue and it was not necessary to inform or instruct the jury to only consider it for a specific purpose. [Phillips v. St. Louis S.F.R.R. Co., 211 Mo. 419, 111 S.W. 109; Lemen v. Kansas City S.R. Co., 151 Mo. App. 511, 132 S.W. 13; State ex rel. v. Trimble, 276 S.W. 1020; O'Donnell v. K.C. Life Ins. Co., 277 S.W. 973.]

If this conductor, after having concluded his inquiry as to the facts connected with the accident had made a report to the superintendent, as he testified it was his duty to do, and this same statement had been found in that report and plaintiff had offered that report in evidence it would clearly have been admissible under the authority of the Phillips case, supra. That report would have been only the statement of the conductor made while engaged in the performance of a specific duty and we see no difference between a statement in a report made to a superior and a statement made at the time by him while in the performance of his duty collecting the facts on which to base his report. Judgment will be affirmed. Bradley, J., and Bailey, J., concur.