Weber v. Chicago, Rock Island & Pacific Railroad
This text of 175 Iowa 358 (Weber v. Chicago, Rock Island & Pacific Railroad) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
Gaynor, J.
This is an action to recover damages for personal injury claimed to bave been sustained by the plaintiff through the negligence of the defendant. There was a trial to a jury, a verdict : for the plaintiff, judgment, on the verdict, and defendant appeals.
[361]*361It appears that, on the 20th day of March, 1905, plaintiff was acting as mail clerk in the employ of the United States government, and, as such, was engaged in handling the mail on a mail car attached to and constituting a part of defendant’s train. This train was known as the Rocky Mountain Limited, and this particular train, as No. 41; and it was proceeding westward at the time of the alleged accident. Shortly after leaving Homestead, a town on defendant’s line, traveling'at a speed estimated as high as 65 miles an hour, it left the track, and plaintiff was injured.
The negligence charged against the defendant, upon which plaintiff predicates his right to recover, is that, on said date and at the place where plaintiff was injured, the railway was in a dangerous condition for trains to pass over it, in that the dump and roadbed were defective, the ties rotten, the rails not properly spiked and clamped to the ties or sleepers, the fastenings loose thereon, the earth on the embankment soft and uneven, and the track uneven or low on one side, by reason of which the same was in an unsafe and dangerous condition, and this condition was known to the defendant and defendant’s agents at the time, or had existed for such a length of time before the accident that it should have been known to the defendant by the exercise of reasonable care and inspection. It was further claimed that the defendant operated its train at too high a rate of speed, in view of the dangerous condition of the track and roadbed at the place of the accident. The answer was a general denial.
The evidence shows that this was a fast train, if not the fastest on the road. It was composed of the engine and six cars, attached in this order • tender, mail ear, combination baggage and smoking car, a sleeping car called Egypt, another sleeper known as Vespasian,' a chair ear, and a combination' sleeper and observation car. The train was made up from the engine to the rear end in the order above given! The plaintiff’s run was from West Liberty to Omaha. The engine, tender, mail ear, and combination baggage and smoking car [362]*362left the track, and were hurled down to the bottom of the embankment. The two sleeping cars left the track, but were left in an upright position part way down the bank. ‘The chair car remained on the top of the dump, but entirely off the track. The combination observation sleeping car was standing with the north wheels of the west trucks on the north rail, and the south wheels off the south rail, and the east trucks on both rails. It appears that the front trucks of the combination observation sleeping car, when it came to a standstill, were 15 feet east of where it is claimed by defendant that the rails became disconnected which dumped the train. The cars had run some distance before they headed down the embankment.
Plaintiff’s witness, Hanks, who was in the mail car with the plaintiff at the time of the accident, testifies:
“Next to the chair car was the sleeping car. They were nearly in a straight line headed down the embankment. That night, the car I was in ran for some distance on the ties before it headed down the embankment.”
It appears that the embankment was 18 feet across the top and 128 feet wide at the base.
There is evidence that the rail was not out of line on the north side of the track until a point was reached about 33 feet west of where it is claimed by the defendant that the ties were disconnected.
There is no question that, on the night this train was derailed, the plaintiff was in the mail car at the time, and was seriously injured.
The controversy between the parties is as to the cause of this- derailment. The plaintiff claims that it was due to the negligence of the defendant, in that it did.not make proper inspection of the road at this point, and allowed the roadbed, to become in a condition dangerous for trains to pass oyer it.; that the roadbed was defective, the ties rotten, the .rails improperly spiked, the fastenings loose, the earth on the embankment soft and uneven, the track uneven and low on [363]*363one side; and that this was the cause of the train’s derailment.
The defendant claims that the roadbed, ties, rails, spikes and appliances holding them were in good condition immediately preceding the accident; that the south rail of the track, at the place where the injury occurred, was disconnected from the rail just west of it by one Erie Von Kutzlaben; and that the wreck was the result of his wrongful and wicked act in removing the spikes from the ties and disconnecting the two rails within a short time before the train arrived at that point.
These are the two theories upon which the case was submitted to the jury, each theory having some support in the evidence. The jury found for the plaintiff, thus rejecting defendant’s theory of the cause of the accident.
This ease is not triable de novo here, and it is not for us, nor do we assume, to'try the ease anew upon the facts submitted in this record.
Upon this point we have to say that we do not understand that the defendant seriously contends that the plaintiff, at the time, did not sustain to the company the relationship of a passenger. However, to entitle him to invoke this rule and to have the benefit of the law regulating the relationship between the carrier and its passengers, it must appear that he sustained that relationship. It is not easy to state a general rule nor to give a definition of the word “passenger” which would embrace all the essential elements. As said in 2 Hutchinson on Carriers (3d Ed.), Sec 997:
“The one usually accepted by the courts, when a definition has been attempted, is that a passenger is ‘one who travels in some public conveyance by virtue of a contract, express or [364]*364implied, with the carrier, as the payment of fare, or that which is accepted as equivalent therefor.’ This definition, however, like all others, is hardly comprehensive enough, for, as a general rule,, every person, not an employe, being carried with the express or implied consent of the carrier upon a public conveyance usually employed in the carriage of passengers is presumed to be lawfully upon it as a passenger. There are two main elements in the legal definition of a passenger: first, an undertaking on the part of the person to travel in the conveyance provided by the carrier; and second, an acceptance by the carrier of the person as a passenger. Whether either or both of these elements exist is ordinarily a question for the jury.”
Cavin v. Southern P. R. Co., 136 Fed. 592; Southern P. R. Co. v. Schuyler, 135 Fed. 1015; Illinois Cent. R. Co. v. Porter (Tenn.), 94 S. W. 666.
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Gaynor, J.
This is an action to recover damages for personal injury claimed to bave been sustained by the plaintiff through the negligence of the defendant. There was a trial to a jury, a verdict : for the plaintiff, judgment, on the verdict, and defendant appeals.
[361]*361It appears that, on the 20th day of March, 1905, plaintiff was acting as mail clerk in the employ of the United States government, and, as such, was engaged in handling the mail on a mail car attached to and constituting a part of defendant’s train. This train was known as the Rocky Mountain Limited, and this particular train, as No. 41; and it was proceeding westward at the time of the alleged accident. Shortly after leaving Homestead, a town on defendant’s line, traveling'at a speed estimated as high as 65 miles an hour, it left the track, and plaintiff was injured.
The negligence charged against the defendant, upon which plaintiff predicates his right to recover, is that, on said date and at the place where plaintiff was injured, the railway was in a dangerous condition for trains to pass over it, in that the dump and roadbed were defective, the ties rotten, the rails not properly spiked and clamped to the ties or sleepers, the fastenings loose thereon, the earth on the embankment soft and uneven, and the track uneven or low on one side, by reason of which the same was in an unsafe and dangerous condition, and this condition was known to the defendant and defendant’s agents at the time, or had existed for such a length of time before the accident that it should have been known to the defendant by the exercise of reasonable care and inspection. It was further claimed that the defendant operated its train at too high a rate of speed, in view of the dangerous condition of the track and roadbed at the place of the accident. The answer was a general denial.
The evidence shows that this was a fast train, if not the fastest on the road. It was composed of the engine and six cars, attached in this order • tender, mail ear, combination baggage and smoking car, a sleeping car called Egypt, another sleeper known as Vespasian,' a chair ear, and a combination' sleeper and observation car. The train was made up from the engine to the rear end in the order above given! The plaintiff’s run was from West Liberty to Omaha. The engine, tender, mail ear, and combination baggage and smoking car [362]*362left the track, and were hurled down to the bottom of the embankment. The two sleeping cars left the track, but were left in an upright position part way down the bank. ‘The chair car remained on the top of the dump, but entirely off the track. The combination observation sleeping car was standing with the north wheels of the west trucks on the north rail, and the south wheels off the south rail, and the east trucks on both rails. It appears that the front trucks of the combination observation sleeping car, when it came to a standstill, were 15 feet east of where it is claimed by defendant that the rails became disconnected which dumped the train. The cars had run some distance before they headed down the embankment.
Plaintiff’s witness, Hanks, who was in the mail car with the plaintiff at the time of the accident, testifies:
“Next to the chair car was the sleeping car. They were nearly in a straight line headed down the embankment. That night, the car I was in ran for some distance on the ties before it headed down the embankment.”
It appears that the embankment was 18 feet across the top and 128 feet wide at the base.
There is evidence that the rail was not out of line on the north side of the track until a point was reached about 33 feet west of where it is claimed by the defendant that the ties were disconnected.
There is no question that, on the night this train was derailed, the plaintiff was in the mail car at the time, and was seriously injured.
The controversy between the parties is as to the cause of this- derailment. The plaintiff claims that it was due to the negligence of the defendant, in that it did.not make proper inspection of the road at this point, and allowed the roadbed, to become in a condition dangerous for trains to pass oyer it.; that the roadbed was defective, the ties rotten, the .rails improperly spiked, the fastenings loose, the earth on the embankment soft and uneven, the track uneven and low on [363]*363one side; and that this was the cause of the train’s derailment.
The defendant claims that the roadbed, ties, rails, spikes and appliances holding them were in good condition immediately preceding the accident; that the south rail of the track, at the place where the injury occurred, was disconnected from the rail just west of it by one Erie Von Kutzlaben; and that the wreck was the result of his wrongful and wicked act in removing the spikes from the ties and disconnecting the two rails within a short time before the train arrived at that point.
These are the two theories upon which the case was submitted to the jury, each theory having some support in the evidence. The jury found for the plaintiff, thus rejecting defendant’s theory of the cause of the accident.
This ease is not triable de novo here, and it is not for us, nor do we assume, to'try the ease anew upon the facts submitted in this record.
Upon this point we have to say that we do not understand that the defendant seriously contends that the plaintiff, at the time, did not sustain to the company the relationship of a passenger. However, to entitle him to invoke this rule and to have the benefit of the law regulating the relationship between the carrier and its passengers, it must appear that he sustained that relationship. It is not easy to state a general rule nor to give a definition of the word “passenger” which would embrace all the essential elements. As said in 2 Hutchinson on Carriers (3d Ed.), Sec 997:
“The one usually accepted by the courts, when a definition has been attempted, is that a passenger is ‘one who travels in some public conveyance by virtue of a contract, express or [364]*364implied, with the carrier, as the payment of fare, or that which is accepted as equivalent therefor.’ This definition, however, like all others, is hardly comprehensive enough, for, as a general rule,, every person, not an employe, being carried with the express or implied consent of the carrier upon a public conveyance usually employed in the carriage of passengers is presumed to be lawfully upon it as a passenger. There are two main elements in the legal definition of a passenger: first, an undertaking on the part of the person to travel in the conveyance provided by the carrier; and second, an acceptance by the carrier of the person as a passenger. Whether either or both of these elements exist is ordinarily a question for the jury.”
Cavin v. Southern P. R. Co., 136 Fed. 592; Southern P. R. Co. v. Schuyler, 135 Fed. 1015; Illinois Cent. R. Co. v. Porter (Tenn.), 94 S. W. 666.
[365]*365In the case at bar, the plaintiff was injured by the derail-' ment of the train. A presumption that the defendant failed in the discharge of its duty to the plaintiff arose when 'this was made to appear.
Of course, in all cases where the action is predicated on negligence, the burden of proof in the first place rests upon the plaintiff; but, as said in Pershing v. Chicago, B. & Q. R. Co., 71 Iowa 561:
‘ ‘ The rule which casts the burden of proof on the carrier is a rule of evidence, having its foundation in considerations of policy. It prescribes the quantum of proof which the passenger is required to produce in making out his case originally, and he is entitled to recover on that proof, unless the carrier can overcome the presumption which arises under the rule from the facts proven.”
While the burden rests upon the plaintiff primarily to show a failure of duty on the part of the defendant in respect to the matters charged, and that this failure was the proximate cause of the injury, this burden is sufficiently sustained in the first place when it is shown that the injury was received by reason of the derailment of the train. This makes a primafaeie ease for the plaintiff, and casts the burden on the defendant to show that the injury was not the result of any negligence or carelessness on the part of the defendant, and that the accident was such that defendant could not, by human foresight and care, have guarded against it.
This rule has its foundation primarily in common experience, in that such accidents as are here complained of do not usually and ordinarily occur where the duty has been fully performed by the carrier in the equipment and management of its trains and the construction and inspection of its roadbeds. They are, in every sense, extraordinary accidents, and when they do occur, a presumption arises that the carrier has not discharged its full duty; for they do not usually occur when it does. This, however, is not a conclusive presumption, for experience shows that such accidents do some[366]*366times happen, even when the carrier has performed its full legal duty to the passenger, and so the defendant may relieve itself; but the burden rests upon it to show-that it was without fault in the matter.
A reference to plaintiff’s pleading will show, that he charges several acts of negligence on the part-of the defendant, which it is claimed resulted in the derailment of'the train. As said in Whittlesey v. Burlington, C. R. & N. R. Co., 121 Iowa 597:
“It is true that in an action against a railroad for injuries received by a passenger, resulting from an accident in the operation of a train, which accident is of such a nature that it would not usually happen without negligence, evidence of the happening of the accident and the injury to plaintiff resulting therefrom, is generally held to be prima facie sufficient to establish negligence, and to east on the defendant the burden of proving want of negligence on its part in connection with the accident.”
In Cronk v. Wabash R. Co., 123 Iowa 349, a ease in which the plaintiff was injured while riding in the caboose of defendant’s freight train, by reason of the derailment of the train, this court said:
“It is said that if the jury found the roadbed or rolling stock defective in any one of the 10 or 12 particulars alleged, this cast the burden of the proof upon the defendant to show that it was not negligent, not only as to that one, but as to all of the specifications contained in the petition. It was not incumbent upon the plaintiff, however, in the first instance, to prove any of these defects. Upon proof that the injury of plaintiff resulted from the derailment of the train, the burden of proof shifted, and was cast upon the defendant to show that the accident was not occasioned by any negligence on its part. * * * But appellant insists that, even though it then proves the efficient cause of the accident, under this instruction, it was bound to go farther, and exculpate itself from every other charge of negligence stated in the petition. ’ ’
[367]*367The court, in answering this contention of the appellant, held that, when the company' established the cause of the derailment, and that it was not responsible in any way for the derailment, it had exculpated itself from the charge of negligence. The presumption of negligence arose from the proof of the derailment and accident, and the burden then shifted to the defendant to show that the derailment was due to causes over which it had no control, and against which human foresight could not have guarded.
This pronouncement of the court is to the effect that the burden of proof rests upon the plaintiff, in the first place, to show his right to recover for the injury alleged. Proof on the part of the plaintiff of his injury, and that the injury resulted from the derailment of the train, makes a prima-faeie case; and then the burden of proof shifts to the defendant to show that the accident was not caused by any negligence on its part; and when it shows the efficient producing cause of the accident, and that this was independent of any negligence on the part of the defendant, and due to a cause for which the defendant was in no way responsible, then by this, it negatives the presumption arising from the prima-facie proof, and thereby establishes its freedom from negligence. As in point upon this proposition, see Gleeson v. Virginia Midland R. Co., U. S. Supreme Court, 35 L. Ed. 458. This was an action for damages sustained by a railway postal clerk on defendant’s cars by reason of the train’s being derailed. The facts in that case, as stated in the opinion, are that plaintiff was a railway postal clerk in the service of the United States; that, in discharge of his official duties, he was making a run from Washington to Danville, in the postal car of the defendant, and over its road; that, in the course of such run, the train was derailed by a landslide which occurred in a railway cut, and the postal car in which the plaintiff was working was thrown from the track, the fireman killed and-the engineer seriously injured; that the plaintiff was thrown violently forward by the force of the collision, and also [368]*368injured. The defense was that the derailment was caused by rain which had fallen a few hours previously, causing a landslide, and was, therefore, the act of God. Second, that it was a sudden landslide caused by the vibration of the train itself, which no reasonable foresight could have guarded against. The court, after considerable discussion and citation of authorities, makes the following pronouncement:
“The law is that the plaintiff must show negligence in the defendant. This is done prima facie by showing, if the plaintiff be a passenger, that the accident occurred. * # * When he proves the occurrence of the accident, the defendant must answer that case from all the circumstances of exculpation, whether disclosed by the one party or the other. They are its matter of defense. And it is for the jury to say, in the light of all the testimony, and under the instructions of the court, whether the relation of cause and effect did exist, as claimed by the defense, between the accident and the alleged exonerating circumstances. But when the court refuses to so frame the instructions as to present the rule in respect to the prima-facie case, * * * it leaves the jury without instructions, to which they are entitled, to aid them in determining what were the facts and causes of the accident, and how far those facts were or were not within the control of the defendant. ’ ’
The court further in this ease said:
“Since the decisions in Stokes v. Salstonstall, 38 U. S. (13 Pet.) 181 [10:115], and New Jersey R. & Transp. Co. v. Pollard, 89 U. S. (22 Wall.) 341 [22:877], it has been settled law in this court that the happening of an injurious accident is, in passenger eases, prima-facie evidence of negligence on the part of the carrier, and that (the passenger being himself in the exercise of due care) the burden then rests upon the carrier to show that its whole duty was performed, and that the injury was unavoidable by human foresight. The rule announced in those cases has received general acceptance, and [369]*369was followed at the present term in Inland and Seaboard Coasting Co. v. Tolson, 139 U. S. 551 [35:270].”
See, also, Illinois Cent. R. Co. v. Porter (Tenn.), 94 S. W. 666.
From the foregoing, we deduce the following principlés: It is the duty of a common carrier of passengers to exercise the highest degree of care in transporting its passengers to their destination. To this end, it is its duty to see that nothing which human foresight could guard against happens in the management and control of its trains, its rolling stock, and roadbed that will imperil the safety of the passenger while being so transported. The derailment of a train does not usually and ordinarily occur when the carrier has discharged this duty. Proof of derailment of a train and injury to the passenger is, therefore, prima-facie evidence that the company has not discharged this duty. This is based upon the thought that such accidents do not ordinarily occur when the carrier has discharged its full duty.'. This showing, therefore, establishes a failure on the part of the company to perform its duty, and out of this arises the actionable negligence.
Common experience also shows that accidents of this kind do arise when the carrier has done its full duty, but this is unusual and out of the ordinary (when we consider the multitude of trains that are being operated every day as compared with the number of accidents from derailment); so then the law wisely shifts to the defendant the burden of exculpating itself, either by showing that it had done its full duty, and the accident was unavoidable and one that could not be anticipated or guarded against, or that it was the result of some independent intervening cause, over Which the defendant had no control and could not have guarded against. Upon such showing, and only upon such showing, is the defendant exculpated.
This proposition involves the rule of res ipsa loquitur— the facts speak for themselves. The plaintiff was a passenger. [370]*370The defendant owed a duty to the plaintiff to transport him in safety to his destination, and not to omit anything which human foresight could anticipate and guard against for his protection. The train was derailed. This is an unusual and extraordinary fact, one that usually and ordinarily does not happen when the carrier has done its duty. Therefore, the fact of derailment speaks for itself, and says that there has been a neglect of duty on the part of the carrier or this thing would not have happened, and challenges the carrier to negative this by proof that it did not fail in the duty imposed upon it by law, and that the accident was the result of conditions which human foresight could not have anticipated and against which it could not have guarded the passenger.
When a railroad company undertakes the transportation of a passenger, the contract implies that it is provided with a safe and sufficient railroad. See Philadelphia, & Reading R. Co. v. Anderson, 94 Pa. 351; Feital v. Middlesex R. Co., 109 Mass. 398, in which the court said, in discussing a case similar in its legal aspects to the one under consideration:
“A railroad and its ears are constructed and adjusted to each other with the purpose that, when there is no defect in either, the cars shall remain on the track. The fact that a car runs off is evidence of defect or negligence somewhere; and where the track and the cars are under the exclusive control of the defendants, it has been held evidence of negli- ' gence sufficient to charge them, in the absence of any explanation showing that the accident happened without fault on their part,” citing Le Barron v. East Boston Ferry Co., 11 Allen (Mass.) 312; Carpue v. London & Brighton R. Co., 5 Q. B. 747. “It is not incumbent upon the plaintiff, after proving an accident which implies negligence, to go farther and show what the particular negligence was, when from the circumstances it is not in his power to do so.”
See, also, Lemon v. Chanslor, 68 Mo. 340, and cases therein cited. Stokes v. Saltonstall, 13 Pet. (U. S.) 181.
No better principles are settled in the law than these. [371]*371The cause of an accident may be inferred from circumstances. The law sometimes raises inferences as to the existence of other facts from proven facts; that is, where a fact is proved to exist that could not, in the nature of things, come into existence without an adequate producing cause, the cause may be inferred from the existence of the fact. This, however, is only a presumption or an inference based on common knowledge and experience, and is rebuttable. When an ultimate fact is sought to be established by the proving of other facts, the ultimate fact cannot be considered established unless the facts relied upon are of such a nature and so related to each other that it is the only natural or reasonable conclusion to be drawn therefrom.
It is contended by the defendant, however, that the plaintiff’s cause of action is bottomed on negligence — a failure on the part of the defendant to discharge its legal duty to the plaintiff; that, to entitle the plaintiff to recover, it must appear affirmatively that the defendant failed in the discharge of its legal duty, and that this failure was the proximate cause of the injury to the plaintiff; and so it is urged that, when the whole record is made, and the circumstances proved on the trial are as consistent with the conclusion of due care as with the conclusion of negligence, no presumption of negligence can be indulged in; and to support this contention, defendant relies upon Ashcraft v. Davenport Locomotive Works, 148 Iowa 420; O’Connor v. Illinois C. R. Co., 83 Iowa 105, 111; Gandy v. Chicago & N. W. R. Co., 30 Iowa 420. These cases are those in which no presumption of negligence arises. They are cases in which the burden rested upon the plaintiff to show not only that the defendant was chargeable with the negligence alleged against it in the petition, but that this negligence was the proximate cause of the injury.
In the case at bar, the proof that the plaintiff was a passenger, that the train was derailed, and that he was injured, is all that the plaintiff is required to show. The burden, therefore, shifted upon the defendant, and these cases [372]*372are in point, but against the defendant’s contention in this case. The fact that the defendant has introduced evidence tending to show that the accident was due to causes over which it had no control is in rebuttal of the fact presumption created by the law, and it is, therefore, ordinarily for the jury to decide and say whether or not it has exculpated itself from the charge of negligence.
In cases in which the plaintiff seeks to recover for personal injuries, and bases his right to recover on distinct acts of omission or commission on the part of the defendant, and predicates actionable negligence on this, the burden of proof rests upon him to show the negligence charged; and, whether he attempts to do this by circumstantial or direct evidence, it cannot be said that he has done so, unless there is a preponderance of the evidence offered and submitted in his favor upon the question. Where the burden of proof rests upon a party to establish an ultimate fact, it cannot be said to be established unless the evidence of its existence or nonexistence preponderates, and this is true whether the burden rests on the party to establish an affirmative or a negative proposition. Thus, the burden of proof rests upon the plaintiff to establish his own freedom from negligence, and surely it could not be said that he had established his freedom from negligence by a showing that his act was as consistent with want of negligence as it was with negligence. By such showing, he could not claim to be relieved from the legal duty to establish by a preponderance of the evidence the ultimate fact that he did not, by his own negligence, contribute to the injury of which he complains.
In the case at bar, the burden was on the defendant to establish a negative fact, to wit: that it was free from negligence contributing to the conditions out of which the accident arose, and it did not do this by a mere showing that it was just' as probable that the injury occurred without negligence on its part as that it was guilty of negligence.
[373]*373When the relationship of carrier and passenger is shown, and an accident occurs which would not ordinarily have occurred had the defendant discharged its full duty, this proof is evidentiary of the ultimate fact that it did not discharge its full duty, and has probative force in establishing the culpable negligence of the defendant. It is a presumption of fact, inferable and determinable from the fact that, where carriers exercise the highest degree of care in the management and control of their conveyances and in the inspection and maintenance of their roadbeds, these accidents do not ordinarily occur; and, therefore, a mere showing on the part of the defendant that the injury could have happened, or probably did happen, without any fault or negligence on its part, or by reason of the intervention of some independent agency over which it had no control, does not, as a matter of law, negative the presumption based upon the prima-facie showing. It leaves it still a question for the jury, and especially is this true when the explanation offered by the defendant, by reason of which it seeks to be relieved of the charge of negligence, is of such a character that men might honestly differ as to what was the real cause of the derailment.
It is true that, if the defendant had proved that the accident was due to a cause over which it had no control, or against which the highest degree of care would not have been availing, and which human foresight could not have anticipated ' and guarded against, then the defendant would be relieved of responsibility. But the burden is on it to do this before it is relieved, and whether it has done this is a question ordinarily for the jury.
We think that there was no error on the part of the court in refusing to instruct the jury to return a verdict for the defendant on the showing made, and as the record then stood. This disposes of the first three errors assigned for reversal.
But it is contended that there was error committed by the [374]*374court in the making of the record. It is contended that there was misconduct of counsel for appellee, prejudicial to appellant, in the opening statement. An examination of the record satisfies us that there is no reversible error on this point.
In view of the fact that this case must be reversed on other grounds, we do not go into a detailed examination of defendant’s contention on this point, but will content ourselves with stating the general rule, and noting a few of the questions which were asked, and objections sustained, which we think constitute prejudicial error.
The witness J. A. Stafford, who claimed to have made an examination of these ties soon after the wreck, testified without objection:
“There was evidence on the track that they (meaning the spikes) had been pulled.”
He was then asked this question:
“What do you mean by the evidence on the track that the spikes had been pulled? A. The impression left on the ties of a crowbar having been used. Q. Now, then, when you looked at the ties that morning along the south side of the [375]*375rail, did yon find any marks on the ties indicating how those spikes had been removed?”
This question was objected to, and objection sustained. In view of the previous testimony, we think this was competent. He was not asked how the spikes were pulled, but whether there were any marks on the ties indicating how they had been removed.
“Now, did you notice any marks on the end of the ties and in connection with the places where the spikes had been drawn or had disappeared from the end of the ties ? A. I did see an impression. Q. What marks did you see along there ? Tell the jury as plainly as you can. A. Well, it was where a crowbar — you. could see where they had been pried out. You could see the impression in the ties where there had been some — had pulled them. Q. Now then, you say that you saw the marks of the crowbar on the tie. Where were the marks of the crowbar with reference to the place where the spikes had been in the tie? (Objected to and sustained.) ”
In most instances, the witnesses were permitted to describe to the jury what they saw, the impressions upon the ties as they appeared to them, but were not permitted to state what caused the impression upon the ties. They should have been permitted to say how the impressions, as they observed them there at that time, appeared to have been made. This is a rule of necessity. . The best evidence of which a ease in its nature is susceptible must be produced and used. It is the only way in which the knowledge of the witnesses as to the ultimate fact, gathered from their inspection and knowledge of the fact, can be brought to the attention of the jury. Some things can be accomplished in many ways. It is often a matter of speculation as to the cause of anything or the manner in which it was accomplished. One who has made an inspection and observation of conditions is in a better position to direct the mind to the primary cause than one who has not had that opportunity. It is not conclusive, but [376]*376has probative force. See State v. Rainsbarger, 71 Iowa 746, 749; State of Iowa v. Rutledge, 135 Iowa 581, 586.
Mr. Lawson, in his treatise on Expert and Opinion Evidence (2d Ed.), and under the head of Opinions from Necessity, p. 513, cites with approval the case of Graham v. State (Texas), 13 S. W. 1010, which declares that a nonexpert should be permitted to say that “bruises seem to have been made with a rough, hard substance.” The Texas court puts this upon the ground that the statement of an effect produced on the mind “becomes primary evidence, and hence admissible whenever the condition of things is such that it cannot be reproduced and made palpable.” See, also, State v. Hassan, 149 Iowa 518, 530.
In State v. Rainsbarger, supra, this court quotes with approval from Mr. Lawson’s work on Expert and Opinion Evidence, p. 505, the following: .
“ ‘The opinions of ordinary witnesses, derived from observation, are admissible in evidence, where, from the nature of the subject under investigation, no better evidence can be obtained, or the facts cannot otherwise be presented to the tribunal,’ ” and applies this rule to the Rainsbarger case, reference to which is made for the facts to which the rale is applied.
It is the contention of the defendant that the rails . at the point where the train was thrown from the track were removed by one Eric Yon Kutzlaben, just a short time before the accident.
A stipulation was entered into between the counsel for plaintiff and defendant that the testimony of this witness should be taken before one Edna Hull, a stenographer, the agreement being as follows:
“It is further agreed that Edna Hull, a stenographer, may take such deposition, and that the transcript thereof need not be sworn to nor verified by the witness, but such transcript may be duly certified by said Edna Hull, a stenographer, to the same purpose and effect as though the same were signed and sworn to by the witness. ’ ’
This was made immediately before the déposition was taken. • Thereupon, the following proceedings were had before said notary:
“Q. State your name, age and place of residence. A. My name is Eric Von Kutzlaben. 27. My residence is really Eisnach, Germany. Q. Where are you at present? A. In Anamosa. Q. Are you an inmate of the penitentiary of the state of Iowa located at Anamosa at present? A. Yes. Q. When were you brought here ? ’ ’
Thereupon, counsel for the plaintiff advised the witness that he was not required to answer, and the witness declined to answer the question. Counsel for plaintiff notified the witness that he was not required to answer any other question that should be propounded to him on the taking of the deposition. It appears that this deposition was being taken in behalf of the defendant. The deposition discloses that the witness, under the direction of the counsel for the plaintiff, refused to answer the following question:
“Were you convicted in the district court of Iowa, in and for Iowa County, for the crime of the murder of one Hotchkiss, which murder was committed by the derailing of [378]*378a train on the defendant’s road near Homestead on March 21, 1905? (Witness declined to answer.) Q. Were you present or about the train on the track of the Chicago, Rock Island & Pacific Ry. which was derailed at that time and place? Q. Did you not, on or about March 21, 1905, displace the rails on the track of the Chicago, Rock Island & Pacific Ry. at the time and place aforesaid ? Q. Did you not, on or about that date, at that place, draw the spikes that secured the rails on defendant’s road about one mile west of Homestead on March 21, 1905, and did you not displace the adjoining ends of said rails at said point, and did not, as the result of drawing said spikes and displacing said rails, a wreck occur to passenger No. 41 at that time and place?”
Other questions of like import were asked, and the witness declined to answer, on the suggestion of counsel, as aforesaid.
It appears that Havner was or had been counsel for Von Kutzlaben, defended him on a charge involving the wrecking of this train, and was also counsel for the plaintiff in this suit. It has been said that you cannot serve two masters, but here the interests of the masters were identical. Havner was interested in protecting his client, Von Kutzlaben, from the giving of incriminating evidence. No man is required under the law to incriminate himself. It was not only the right but the duty of counsel to advise his client of his right under the law before he gave the incriminating testimony. This was all that he did, so far as this record shows, and Von Kutzlaben availed himself of his privilege. Had the testimony been taken in open court, it would have been the duty of the court, on request of counsel, to advise the witness that he was not required to give any evidence that would tend to incriminate him, or subject him to a criminal charge in connection with the wrecking of this train. We see no grounds for reversal on this point.
[379]*379
“I, Eric Von Kutzlaben, being first duly sworn, depose and say that I was born in Germany, and that I came to the United States in August, 1903; that I want to tell the whole truth concerning the wreck east of Homestead on the Rock Island Railway; and that I am doing this of my own free will, without fear, intimidation, promise or threats whatsoever. I am the person who caused the wreck. I conceived the plan to wreck this passenger No. 41. I found the wrenches that I used to do so at Homestead about the grain elevator. There is a passageway between the coal shed and the engine room and there I found two wrenches on top of a big timber; one of these wrenches had an iron pipe attached to its handle, but I took the other one without the pipe attached to the handle. I knew where to find these wrenches, as I found them soon after the big snow disappeared, and before I left Homestead. Near the section tool house alongside of the tracks of the Rock Island Railway I found a crowbar between two piles of timber. I did not take it, but left it there. I did not use this crowbar, as I took one from the section tool house at Amana the same night of the wreck, and this was the crowbar I used in committing the act. I used the wrench that I had found at Homestead under the timbers near the coal shed. I took this wrench to take off the nuts off the bolts fastening the plates on the rails. When I met the young man, William Setzer, I threw the crowbar alongside of the tracks, and after he left me I went a short distance south and then came back and got the crowbar. And then went to the big cut where the wreck occurred, and with the wrench unscrewed the bolts fastened to the angle plates and removed the plates and pulled up some of the spikes. I done this shortly before the freight train coming from the west had [380]*380passed, and after this freight passed, I took the remaining spikes from the rails. I then spread the rails from where they met about an inch, from the east rail I pulled the spikes from the outside of the rail, and from the west side I pulled the spikes from the inside of the rail, and pried the east rail in a ■southwestern direction, and the west rail in a northeastern direction. I then took about six pieces of newspaper and covered the rails for about eight feet, this paper extending over the connection of the rails, and I then placed stones alongside of the track on the paper so that the engineer would not discover the rails were out of place. I screwed the nuts back on the bolts after taking off the angle plates, which I threw along the north side of the track. I threw the wrench in the creek near where the train was wrecked. I threw the crowbar at the south side of the east abutment of the bridge, over the small stream directly east, but a short distance of the place of the wreck, and into the same stream I threw the wrench. I then went through the barb wire fence on the south side of the track where the wreck occurred and getting through this fence is where I tore my- coat. I then walked about a hundred feet southeast of the fence in the timber and stopped about ten minutes, at which time the wreck occurred. I did not see the train go down the grade. All .that I could see was steam coming from the engine. I then went a little west and, leaving the woods, I passed through two gates and onto the track of the Rock Island Railway. On going nearer to the wreck, I discovered that part of the train went down the bank and part did not. I then went up to where the train was wrecked and stood on the roadbed about twenty minutes and saw the fireman. I then went to the mail ear and while there I saw the fireman. I remained at the wreck about two hours. I did not enter a car in which there was passengers. I left the wreck about 2:30 A. M-. and returned to Amana and retired, and when I got in bed I thought I heard the clock strike four o’clock shortly afterwards.”
[381]*381This statement was objected to by counsel and the objection sustained; and of this, complaint is made.
The defendant also offered evidence tending to show statements made by Von Kutzlaben shortly after the accident, practically in the line of the statements above set out, which were also excluded by the court. On this, the defendant predicates error.
It appears that, after the occurrence of this wreck, Von Kutzlaben was arrested upon a charge of having wrecked the train and causing the death of the engineer; that he was tried upon this charge and convicted; that he appealed to this court and the ease was reversed; that, thereafter, and on or about the 30th day of October, 1908, he was adjudged insane and ordered committed to the department for criminal insane at Anamosa until he became sane.
It appears that, on the 19th day of June, 1909, a writ of habeas corpus was sued out on behalf of Von Kutzlaben, and upon a hearing, the following record was made:
“Now, to wit, on this 19th day of June, 1909, the above entitled matter comes on for hearing on the petition for the writ of habeas corpus . . . the court being fully advised in the premises, and it appearing that all the indictments pending against Von Kutzlaben have been heretofore dismissed upon the motion of the county attorney, and it appearing that there is at this time no criminal charge against him, it is hereby ordered and decreed that the defendant in this action has no further right, power, or authority, to detain or imprison the said Von Kutzlaben in the state reformatory, and he is hereby released, and the defendant warden directed to turn him over to the commissioners of insanity to take such action as they deem best.”
It appears that this was accordingly done, and the following proceedings had before the commissioners of insanity in and for Jones County:
“Now, to wit, on this 19th day of June, 1909, the said [382]*382Yon Kutzlaben having been turned over to the board under the order of the court to be dealt with as in our judgment seems best, we hereby find that the mental condition of the said Von Kutzlaben is such that it is safe to the public that he be discharged, upon the condition that he be delivered into the custody of his mother, and that R. Gr. Popham is empowered to take charge of him and accompany him to the city of Chicago, Illinois, for the purpose of delivering him to the custody of his mother.”
This order was signed by the commissioners of insanity for Jones County.
It appears that the present trial was commenced in the month of February, 1910. At the time of the hearing of this case from which the appeal was taken, the defendant was at large, residing either in Chicago or somewhere in New Jersey. It does not appear definitely in the record.
There is no evidence that he was insane at the time that he made the statements offered in evidence, and there is no evidence that he was insane at the time that the defendant undertook to take his depositions in July, 1907. Having been adjudged to be insane upon an inquisition made by a proper tribunal, we must, in the consideration of this case, assume that he was insane at the time of the trial, nothing to the contrary appearing. A condition shown to exist is presumed to continue until the contrary appears. As said in 2 Chamberlayne on the Modern Law of Evidence, Sec. 1043:
‘‘If a person has been adjudged insane, the presumption of insanity continues until the adjudication of restoration to reason has been made, and where the issue is as to whether reason has been restored, the burden is upon the party who alleges such restoration to reason, to establish it by a preponderance of the evidence.”
See, also, Tiffany v. Tiffany, 84 Iowa 122; Ockendon v. Barnes, 43 Iowa 615.
When these written and verbal declarations of Yon Kutzlaben were offered in evidence, the plaintiff objected to them on the ground that they were incompetent and hearsay. This objection was by the court sustained.
There are, however, well-known exceptions to the rule excluding hearsay testimony. Declarations of a person, whether verbal or written, as to facts relevant to the matter under consideration are admissible in evidence, even between third persons, where it appears: (1) That the declarant is j dead; (2) that the declaration was against his pecuniary or í proprietary interests; (3) that he had competent knowledge/ of the facts declared; (4) that he had no probable motive to falsify the fact.
The first showing required to meet the exception is that the declarant is dead. The declaration is then admitted on [384]*384the ground that he could not be produced in court to testify to the fact declared upon.
The second ground of the exception is that, at the time the statement was made, it was against his interests to make the statement. This second ground is founded upon a knowledge of human nature, that men do not, usually and ordinarily, speak against their own interests, while very often they are free to speak in their own favor. It is based on the thought that courts can safely trust the man who speaks against himself, and the law substitutes this for the sanction of a judicial oath. The usual tests of credibility are the judicial oath administered and a cross-examination of the witness. The admissions of such declarations rest upon the improbability of a man’s admitting as true what he knows to be false, against his own interest. The common law has always regarded the concurrence of these things as a perfectly safe test for ascertaining the truth in all judicial proceedings.
The weight of judicial authority, numerically considered, requires the showing of the first ground of exception to the hearsay rule, before the declaration can be admitted, to wit, that the party whose declaration is offered is dead. Every rule ought to be as broad as the reason upon which it rests. Proof of death establishes the impossibility of producing the declarant upon the trial. To the writer of this 1 opinion, it would seem that a showing that the defendant was intellectually dead — insane—and therefore incapable of being’ I produced as a competent witness, and incapable of testifying ' because of such insanity, would meet the requirements of the ; first ground of the exception, and the only reason apparent ‘why courts have rejected proof of insanity as a foundation for the introduction of a declaration made when the party was sane is that there is some uncertainty as to whether the person is insane or not at a particular time. It is a matter not susceptible of exact and definite proof. It may be feigned or assumed for the very purpose of making his declaration competent as against a third party; and further, there must [385]*385be an inquisition into the sanity of the party before the declaration is admitted in evidence, and this would require the trial of a distinct issue and an affirmative finding as a basis for the introduction of the statement. We have not been able to find any substantial reason given in the books why the law should make death the only test before the statement is admitted.
Mr. Wigmore, in his work on Evidence, Vol. 2, Sec. 1456, states that this exception to hearsay evidence is based upon necessity. The necessity principle, as here applied, signifies the impossibility of obtaining other evidence from the same •source, the declarant being unavailable in person on the stand; and he would enlarge the rule to cover insanity as being within the reason of the rule. He says:
“Whenever the witness is practically unavailable, his statements should be received. Death is universally conceded to be sufficient.”
He says, however:
“The principle of necessity is broad enough to assimilate other causes; but the rulings upon other causes than death are few. . . .. Illness and insanity should be legally sufficient to admit the statements.”
County of Mahaska v. Ingalls, 16 Iowa 81, was a case in which a suit was brought by the plaintiff county upon a county treasurer’s bond, and the treasurer sought to show that the defalcation occurred prior to the execution of the bond, and, to establish this fact, called one White to testify to a conversation had with one Shoemake, who was treasurer of the county prior to that time, but who, at the time of the trial was dead; and over the objection, the witness was permitted to testify:
“ ‘Mr. Shoemake told me that there was over $2,000 in the summer of 1858, that he was behind as treasurer of the county, and he wanted an arrangement made by which I should pay it.’ ”
[386]*386Judge Dillon, speaking for this court in the foregoing case, said: .
“The reception of verbal admissions against his interest, and where the declarant is dead, is supported by the following cases (citing cases). . . . Our examination and survey of this subject may thus be summed up. This species of evidence being somewhat anomalous in its character, and standing on the ultima, thule of competent testimony, is not highly favored by the courts, and the tendency is rather to restrict than to enlarge the right to receive it, or at least to require the evidence to be brought clearly within all the conditions requisite for its reception. From the unbroken current of English and the decided preponderance of American authority, we think the present state of the law is that verbal declarations are receivable, when accompanied by the following prerequisites: 1st. The declarant must be dead. To this we believe the English cases make no exception.' Mere absence from the jurisdiction will not answer. Brewster v. Doane, 2 Hill (N. Y.) 537, and cases; Moore v. Andrews, 5 Port. (Ala.) 107; Although by the course of decisions in some of the states, with reference to written entries, etc., absence might possibly be treated as equivalent to death. See 1 Greenleaf on Evidence, See. 163, and note; 8 Watts, 77; 2 Smith, L. Cas. 340 (top); as to insanity, Union Bank v. Knapp, 3 Pick. (Mass.), 96. As, in the ease at bar, the declarant was deceased, we need not decide whether death is, in all cases, an indispensable condition. We need only say that probably the courts would not be inclined to relax the rule so as to dispense with this condition, unless it might be in the case of confirmed insanity. 2d. The next prerequisite is that the declaration must have been against the interest of the declarant at the time, and that interest must be a pecuniary one. That it would have subjected the party to penal consequences is not sufficient, although this would add to the weight of the testimony. (Davis v. Lloyd, 1 C. & K. 275; 11 Cl. & [387]*387Fin. 85.) The conflict of the declaration with the pecuniary interest of the party must be clear cmd undoubted, as this is the main ground upon which the admissibility of this species of evidence rests. 3d. The declaration must be of a fact or facts in relation to a matter concerning which the declarant was immediately and personally cognizable.”
Judge Dillon further said:
“Under the guidance of these principles, as applied to the case at bar, considering the nature of the admissions as being indisputably against the declarant’s pecuniary interest, and involving disgrace, if not crime, the time of the admission being not only ante litem mot am, but before the execution of the bond in suit; the absence of all conceivable motive to falsify; and the impracticability of procuring other evidence touching the same matters, the court are of opinion that the evidence . . . was properly received. ”
Upon an examination of our own decisions, we find the opinion of Judge Dillon quoted with approval. See Ellis v. Newell, 120 Iowa 71; Moehn v. Moehn, 105 Iowa 710. It is also cited with approval in Smith v. Hanson (Utah), 18 L. R. A. (N. S.) 520.
Mr. Wigmore, in his work on Evidence, Yol. 2, Sec. 1476, says that in his judgment the doctrine should be extended to include penal interests and all declarations of fact against the interest of the deceased person. He, however, concedes that the cases have limited the admissibility of the declaration to a pecuniary or proprietary interest at the time made, and our examination satisfies us that the weight of authority is to the effect that, to make such declarations admissible, it must appear that the party making them is incapable of testifying at the time when the declarations are offered, because of his insanity; and that, at the time they were made, they were against his pecuniary or proprietary interest, and were of such a nature as to affect his interests in that respect.
As in accord with the rule laid down by Judge Dillon, [388]*388see Peck v. Gilmer, 20 N. C. 249; Smith v. Moore, 142 N. C. 277 (7 L. R. A. [N. S.] 684); also, 1 Elliott on Evidence, Sec. 436, in which it is said:
“Declarations made by persons who possessed peculiar means of knowing the matter stated, and had no interest to misrepresent it, are admissible in evidence, when pertinent and relevant, whether made orally or in writing, provided, first, that the declarant is dead, and secondly, that such declarations were opposed to the declarant’s pecuniary or proprietary interest. They embrace entries in books, and all other written or oral declarations of facts made under the above conditions.”
See Bowen v. Chase, 98 U. S. 254; Georgia R. Co. v. Fitzgerald, 108 Ga. 507; 2 Smith, Leading Cases, 331; Taylor v. Gould, 57 Pa. St. 152; Chenango Bridge Co. v. Paige, 83 N. Y. 178; Bartlett v. Patton, 33 W. Va. 71; Friberg v. Donovan, 23 Ill. App. 58; Hinkley v. Davis, 6 N. H. 210; Heidenheimer v. Johnson, 76 Tex. 200; Quinby v. Ayres (Neb.), 95 N. W. 464; Dixon v. Union Iron Works (Minn.), 97 N. W. 375.
Nearly all the cases that we have examined are cases in which the declarant was dead at the time the declaration was offered. In those cases, it was not necessary for the court to go beyond the record made in determining whether insanity was or was not a ground for admitting the declaration; and this was true in the case of Mahaska County v. Ingalls, supra, and Judge Dillon so states. See Halvorsen v. Moon & Kerr Lumber Co. (Minn.), 94 Am. St. 669. Special attention is called to the note on page 673, and citation of eases in support of the text as reported therein. This case will also be found in 91 N. W., at 28, and 87 Minn. 18.
In a few cases that have reached the courts, declarations have been offered and admitted where the party was not dead at the time the offer was made. In Griffith v. Sauls (Texas), 14 S. W. 230, we find one of these cases. It was shown that the declarant’s physical condition was such that his deposition could not be taken. He could not undergo oral [389]*389examination on the stand. He was very old and had lost his power of speech. His declaration was held to be competent, the court saying:
“If Avery had been dead, there could be no question as to the admissibility of his statements about which the witnesses testified, and this would be so because of the inability to produce the witness. If the party whose statements would be admissible if he were dead, from advanced age or other irremediable cause, has lost the power of speech and the ability to testify, either orally or by deposition, what good would it do to produce him ? In what would he be better than a dead man in so far as the production of his testimony is concerned ? We think the circumstances and condition of Avery, as shown by the record, furnish as satisfactory a reason for admitting his statements as proof of his death would afford. ’ ’
It is not necessary to go to that length in this case.
Rothrock v. Gallaher, 91 Pa. (10 Norris) 108, was an action in which they sought to show the declarations of a party who, from the consequences of ill health and age, had lost his memory. It is true in this case that the witness had previously testified. This testimony, as taken at a former trial, was offered in evidence, although he was present in the court at the time. The court said:
“If he had been dead, . . . it is clear this evidence would have been admissible,” citing cases. “We cannot see any substantial reason why the testimony of a witness once duly taken in a pending cause, may not afterwards be read in evidence in another cause between the same parties in regard to the same subject-matter, when in the interval the witness has lost his memory by reason of old age and ill health. The justice and propriety of receiving the evidence are as strong as if the witness were dead, insane . . ., or unable to attend by reason of sickness. Although bodily present, yet if shown to have become so bereft of memory by senility or sickness that he is unable to recall a past transaction to which he had once testified, and has forgotten that he ever testified [390]*390in regard to it, he may be considered as practically absent, and his former testimony, if otherwise admissible, may be read in evidence,” citing 1 Greenleaf on Evidence, See. 163; Jack v. Woods, 5 Casey (Pa.) 375; Emig v. Diehl, 26 P. F. Smith (Pa.) 359; see also Harriman v. Brown, 8 Leigh (Va.) 697.
It was also held, in Cook v. Stout, 47 Ill. 530, that, where a witness had died or become insane after his evidence had been taken, it is permissible to prove, as between the. same parties, what such witness testified to on the former trial.
It appears that, under the English common law, the court seldom, if ever, admitted the testimony of a witness given on a former trial, except in ease of death, placing it practically on the same ground as the declaration of a party made against interest. English courts have modified this, however, and it is thus stated in Stephen on Evidence, Art. 32:
“Evidence given by a witness in a previous action is relevant for the purpose, of proving the matter stated in a subsequent proceeding, or in a later stage of the same proceeding, when the witness is dead, or is mad, or so- ill that he will probably never be able to travel, or is kept out of the way by the adverse party, or in civil, but not, it seemsj in criminal eases, is out of the jurisdiction of the court, or perhaps in civil, but not in criminal eases, when he cannot be found. ’ ’
This goes to the extreme.
As said by Jones in his work on Evidence, Yol. 2, at 791:
‘ ‘ There has been considerable conflict in the United States as to how far the ancient rule has been relaxed. There can be but little doubt that in this country the rule has been so far modified as to admit such testimony in at least four cases: first, where the witness is dead; second, where he is insane or mentally incompetent; third, where he is beyond the seas; fourth, where he has been kept away by the contrivance of the opposite party.’-’
v Jones, in his work on Evidence, Yol. 2, p. 753, discussing this question now under consideration,.says:
“It is not enough .to warrant the admission of declarations [391]*391against interest that the person who made them cannot be produced as a witness. Plis death must be shown” (citing Kart v. Kendall, 82 Ala. 144; Fitch v. Chapman, 10 Conn. 8; Chandler v. Mutual Life of Georgia, 131 Ga. 82; Doe v. Evans, 8 Blackf. [Ind.] 322; Mahaska County v. Ingalls, supra, and other cases), “or what,-for this purpose, is regarded as the equivalent, that he is legally unavailable, . . . being mentally incapable from giving testimony,” citing Griffith v. Sauls, 77 Texas 630.
It is also noted that Judge Dillon, in the Mahaska ease, supra, said:
“As in the case at bar, the declarant was deceased. We need not decide whether death is, in all cases, an indispensable condition. We need only say that probably the courts would not be inclined to relax the rule so as to dispense with this condition, unless it might be in the case of confirmed insanity. ”
In the administration of public justice, the truth as to the existence or nonexistence of a fact material to be known must be ascertained, if possible. To this end, the courts have demanded that the best evidence of which the ease in its nature is susceptible must always be produced. Therefore, when it is shown that a person had knowledge of' a material fact, but cannot be produced because of conditions over which neither he nor the persons desiring his presence had control, the courts have held that his oral or written declaration of and concerning the fact may be received in evidence, provided it is shown that, at the time that he made the declaration, he had no motive to falsify. To insure this, the courts have provided, as a test of truth, that the declaration, when made, was against his interest at the time that it was made. This test of truth is bottomed on the knowledge of men — that they, do not usually speak to their own hurt. A further test is that the interest affected by the declaration must, be personal, certain, and involve interests pecuniary or proprietary.
In ease of confessions of crime committed, made by others than defendant, where the interest affected is not certain, [392]*392involves no certainty of earthly punishment, and is held to be hearsay, the declaration could be made, signed and delivered with the distinct understanding that it should not be used until after the declarant’s death. Thus, in such cases, courts have excluded declarations or confessions of a stranger that he committed the crime, when these were made in contemplation of immediate dissolution, sometimes called deathbed confessions. Snow v. State, 54 Ala. 138; Green v. State (Ind.), 57 N. E. 637; Davis v. Commonwealth (Ky.), 23 S. W. 585; Farrell v. Weitz (Mass.), 35 N. E. 783; Mays v. State (Neb.), 101 N. W. 979; Hodge v. State (Tex.), 64 S. W. 242; People v. Hall (Cal.), 30 Pac. 7; Elliott on Evidence, Vol. 1, p. 441.
Halvorsen v. Moon & Kerr Lumber Co., 87 Minn. 18 (91 N. W. 28), was an action to recover damages for the burning of a building, it being charged that the. burning was due to defendant’s negligence. Defendant offered to prove by a witness on the stand that one George Schlink Stated to him,shortly after the fire, that he was in the burned building on the day, trying lard in the sausage room. When the alarm of fire was given (that is, the fire that it is claimed spread to and destroyed plaintiff’s building), he left the boiling kettle and went out to see the mill fire, and when he returned, the kettle had boiled over and.set the room and building on fire. This was rejected by the court. The court said:
‘ ‘ Confessedly the evidence was hearsay, but it falls within a necessary and established exception to the general rule excluding hearsay. The exception is this: Declarations, whether verbal or written, 'made by a deceased person as to facts presumably within his knowledge, if relevant to the matter of inquiry, are admissible in evidence as between third parties when it appears,” then.citing the general rule heretofore stated.
The court then proceeds to say:
“There is no controversy as to the first condition, for it was admitted on the trial that the declarant was dead. The plaintiff claims . . .. that the declaration in question was [393]*393not against the pecuniary interest of the declarant. We are of the opinion that the facts claimed to have been admitted by him, taken in connection with the fact that he had charge of the sausage room, are the basis of a pecuniary claim against him on the grounds of his negligence.”
See, also, Griffith v. Sauls, supra.
Elliott on Evidence, Yol. 1, Chapter 20, Section 441, says:
“Another limitation upon such declaration is that the declaration must be against the pecuniary or proprietary interest of the person making it. A statement is against the pecuniary interest when it tends to lessen the pecuniary value of property of the declarant, or imposes upon him pecuniary responsibility.”
Judge Dillon, in Mahaska County v. Ingalls, 16 Iowa 86, in speaking of the declarations made and why they were admissible under the rule, said:
“They were made against the pecuniary interest of the declarant, for they were of such a nature, so circumstantial and precise, as to constitute in an action against him by the plaintiff, the foundation and evidence of a legal liability to that extent. They involved, moreover, the admission of conduct, on his part, which would render him, if known, infamous in the eyes of the public, and criminal in the eyes of the law; for the penal statutes of the state declare that every officer who shall unlawfully ‘take, convert, invest, use, loan, or fail to account for, any portion of the public money entrusted to him, shall be imprisoned in the penitentiary, fined in a sum equal to the amount embezzled, and be also disqualified from holding any office under the laws or Constitution of the state. ’ ’ ’
The record in this ease discloses that, after the making of this declaration offered in evidence, and prior to the time of the trial, the defendant had been adjudged insane. There is no evidence that he had recovered from his malady. He was presumed to be insane at the time of the trial. The ¡ declarations were made against his pecuniary interest; for I [394]*394Wey were of such a nature as to constitute the basis of an action against him for damages, as well as to expose him to a ¿riminal prosecution.
Jones, in his Commentaries on the Law of Evidence, "Vol. 2, Sec. 324, says:
“Although most of the cases illustrating the rule are those in which the declarations related to the payment of money, the rule has been frequently declared where other issues were involved, and when the effect of the declaration , would be to furnish evidence of facts which' could be made |the basis of a pecuniary claim against declarant,” citing Halvorsen v. Moon & Kerr Lumber Co., supra; State v. Alcorn, 7 Idaho 599; Walker v. Brantner, 59 Has. 117; Georgia R. & B. Co. v. Fitzgerald, 108 Ga. 507.
We do not want to be understood here as extending the rule in the exception to hearsay evidence, heretofore referred to, beyond the record in this case. Nor do we want to be understood as extending the rule, as suggested, in the cases herein-before cited; but we do say that the record in this case shows that Von Kutzlaben was judicially determined to be insane, prior to the time that his declaration was offered in evidence; that there was no showing that he had recovered from his insanity; and that the presumption continues that he is insane ]at this time. We must not be understood as holding that, under a different showing of facts from what appears in this record, this declaration must be admitted upon a retrial. We simply hold that the rule requiring the showing that the declarant is dead may be extended to cover eases where it is shown that he is insane and incapable of being produced as a witness, and of giving testimony upon the trial; and beyond this, we do not care to go at this time.
For the error in refusing to admit these declarations under the record as made, we think the ease ought to be reversed. — Beversed. . ...
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