Kressin v. Chicago & Northwestern Railway Co.

215 N.W. 908, 194 Wis. 480, 1928 Wisc. LEXIS 3

Opinion

The following opinion was filed November 8, 1927:

Owen, J.

Appellant contends that the court committed error in the admission of a declaration made by the deceased Geniesse concerning the manner in which the accident happened. A witness was permitted to testify that one Geniesse was “brought into the first-aid room — as soon as they had him on the cot there — this was probably twenty minutes after the accident;” that Geniesse told him that they were standing “right at the offset in the railing, near the offset, and one rail was about fifteen inches from the cars and the other three feet from the .cars; he said ‘right at that corner they were standing, and the car was about three feet away, and then they bumped off the car;’ he says he grabbed for A1 (Kressin), — he said the car door caught him and pulled him right in.” Appellant contends that this testimony was hearsay. Manifestly it was inadmissible unless, as contended by respondent, it comes within the exception of the hearsay rule known as the res gestee doctrine. Appellant contends that the declaration was no part of the res gestee because the time of the declaration was too remote from the time of the accident. The length of time intervening between the occurrence of an accident and the making of a declaration is not necessarily and at all times controlling upon the question of whether the declaration is admissible. Declarations said to be a part of the res gestee constitute an exception to the hearsay rule because of circumstances according credibility to such declarations, and, no matter when such declarations may be made, they are admissible if the circumstances giving rise to the credibility of such declarations still exist.

In discussing the subject of res gestee, it is said in 3 Wig-more on Evidence (1st ed.), at sec. 1746, that “the typical case presented is a statement or exclamation, by an injured person, immediately after the injury, declaring the circumr stances of the injury, or by a person present at an affray, a railroad collision, or other exciting occasion, asserting the circumstances of it as observed by him.” And in sec. 1749 : “The utterance, it is commonly said, must be 'spontaneous,’ 'natural,’ 'impulsive,’ ‘instinctive,’ ‘generated by an excited feeling which extends without let or breakdown from the moment of the event they illustrate.’ ” And in sec. 1750: “There must be some shock, startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting. . . . The utterance must have been before there has been time to contrive and misrepresent, i. e. while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance.” The decisions of this court upon the subject are in harmony with this statement of the principle upon which the doctrine of res gestee is based. Johnson v. State, 129 Wis. 146, 108 N. W. 55; Andrzejewski v. Northwestern Fuel Co. 158 Wis. 170, 148 N. W. 37; Shiefel v. State, 180 Wis. 186, 192 N. W. 386.

Whether this nervous shock still dominated the senses at the time of the making of the declaration in this case is a question going to the competency of the evidence to be determined by the court, the decision of which is to be treated on appeal as a verity, unless manifestly wrong. Johnson v. State, 129 Wis. 146, 108 N. W. 55. Geniesse died as a result of his injuries — just how long after the accident does not appear. That he received a severe nervous shock cannot be doubted. That he was suffering from such shock at the time of the declaration seems quite certain. There is no reason to believe that his declaration was the result of premeditation, or artifice, or with a view to the consequences. In view of the determination of the trial court upon the admissibility of the evidence, the circumstances are not such as to justify our declaring it inadmissible.

The jury found that the deceased, Kressin, failed “to exercise that degree of care usually or ordinarily exercised by persons of ordinary care and prudence, or the great majority of people engaged in and employed under the same or similar circumstances.” But they further found that such failure was not a proximate cause of the injuries sustained by the deceased. It is contended by the appellant that it appears as a matter of law that such failure on the part of the deceased did constitute a proximate cause of his injuries. If the jury was warranted in finding the deceased guilty of contributory negligence, we can see no escape from the conclusion that his injury was the proximate result of such negligence. Whether the jury was justified in finding contributory negligence on the part of the deceased, however, is worthy of consideration.

The last seen of Kressin was about fifteen minutes prior to the accident, at which time he was apparently going from the south to the north side of the track. The last seen of Geniesse was at about the same time, and he was apparently going from the north to the south side of the track. It is apparent that they met each other on the way, and the inference is reasonable that they stopped to talk somewhere in the vicinity of this freight car, because when the car moved they were both injured in much the same manner. In view of .the fact that Geniesse frequently made reports to and took orders from Kressin, it is reasonable to suppose that they met each other on their way across the track and stopped to talk. If the deceased was guilty of negligence, it must have been because he stopped and stood in such close proximity to the freight car that when it started it wedged him in between the car and the hand-rail or loading platform. The evidence in the case establishes the fact that the custom prevailed of giving warning before cars on this track were moved by the switching crew. It would not be argued that ordinary care on the part of those loading the car with the product of the mill would require them to be on a constant lookout as to unexpected movements of the car. Had the deceased been in the car loading it and the car had been suddenly moved, as it was, throwing him down and causing him injuries, it would not be contended that he was guilty of a want of ordinary care. The statement is made in Bain v. Northern Pac. R. Co. 120 Wis. 412, 98 N. W. 241, “that it cannot be held negligence in law to take a position in such proximity to a stationary and detached freight car that, if it is set in motion without notice, injury is probable, when one has no knowledge of any custom to move it without warning. Such a car presents nothing of peril in its then condition. It is as harmless as a farm wagon, or, indeed, as a building, per se.” In that case the plaintiff was laying a brick wall in close proximity to a railroad track. While so engaged, a freight car came along without warning and rolled him between the car and the wall, much as the deceased in this case was rolled between the box car and the hand-rail or platform. The trial court directed a verdict in favor of the defendant on the ground that the plaintiff was guilty of contributory negli gence as a matter of law. This court said that if “the situation imposed a duty of warning upon the master, the workman may well without negligence assume that such duty will be performed, unless he has knowledge of absence of such regulation or of a different custom.” Because the record contained no direct evidence with reference to this custom, the case was sent back for a new trial. However, the case seems to hold that unless it was the custom to move such cars without giving warning, and that the plaintiff knew of such custom, there was no ground upon which to hold the plaintiff guilty of contributory negligence. While some of the language in the opinion is sufficiently broad to apply to any one taking a position in close proximity to a freight car, whether in the performance of his duty or to gratify curiosity or to idle away his time, nevertheless it was said with reference to employees whose duties required them to occupy such a position, ánd the cases cited in support of the doctrine are cases in which workmen were injured by the sudden movement of a car while performing duties requiring them to be in a position dangerous if the car be moved without warning.

The duties of Kressin did not require him to be in or about the car, but they did require him to be about his master’s premises. Freight cars were constantly on this track. They were a part of the premises upon which Kressin was required to work. It was not dangerous to be around these cars in view of the custom of giving warning prior to their movement. Kressin met Geniesse in the vicinity of this car. They apparently stopped to talk. It appears that there was necessity for occasional conference between them in the prosecution of their master’s work. They were on their master’s premises during working hours, apparently engaged in conversation of some sort. If they were engaged in conversation concerning the master’s business, then they were in the pursuit of their duties. If this be material, it will so be assumed, as the burden rests upon the defendant of proving contributory negligence, and proof is lacking as to the subject of their conversation. The presumption, therefore, will obtain, in view of all the other circumstances, that they were prosecuting their master’s work. They were standing beside an inert freight car. It was not a place of danger, unless the car be moved without warning. It was an established custom not to move the freight car without warning. This custom was for the protection of all working in or about the premises. The deceased was as much entitled to this warning as employees working within the car itself. In view of this custom, their position was no more dangerous than if they had been working in the car. We hold, therefore, that the case falls within the doctrine of Bain v. Northern Pac. R. Co., supra, and that there was no support for the finding of-the jury that the deceased was guilty of contributory negligence.

This conclusion dispenses with the necessity of considering the question of proximate cause, in response to appellant’s challenge of this part of the special verdict.

By the Court. — Judgment affirmed.

A motion for a rehearing was denied, with $25 costs, on January 10, 1928.