Heckle v. Southern Pacific Co.

McFARLAND, J. This action is brought by a mother to recover damages for the death of her son, who was killed by an accident on the railroad of the defendant. The jury found a verdict for the defendant; but the trial court made an order granting plaintiff’s motion for a new trial, and the defendant appealed from that order.

The motion for a new trial was made upon three grounds: 1. That the court erred in sustaining defendant’s objection to a certain question asked of the witness W. G. Dudley; 2. That the court erred in giving a certain instruction to the jury; and 3. That the court erred in giving a certain other instruction.

1. Dudley was a witness for the plaintiff, and the questions asked him to which objections were sustained related to what Heckle, the deceased, told the witness at the time of the accident. He was asked this question: “At that time did he say anything to you?” and, also, “What did Heckle say to you? What did he say as to the cause of the accident?” It is contended by respondent that these questions were proper because they were inquiries about declarations which were part of the res gestae; and defendant claims that they were not admissible as part of the res gestae. The court concluded that it had erred in sustaining objections to the questions; and the question here now is whether or not the court erred in granting a new trial for that reason.

There is no great difficulty in stating the general principles which prevail in determining whether in a given ease certain declarations or acts are parts of the res gestae. A declaration, to be admissible on that ground, must be an undesigned part, or incident, of the occurrence in question. It must be, in a general sense, contemporaneous with the main occurrence, although, in ease of a sudden accident or attack, the declaration would not be inadmissible merely because the blow or collision immediately preceded it; it must be the natural and spontaneous outgrowth of the main occurrence, and must exclude the notion of deliberation or calculation, or the design to manufacture evidence for future purposes; and, if it be a mere narrative of past events, it then is clearly within the category of inadmissible hearsay, and must, beyond doubt, be excluded. The authorities cited by respective counsel, although apparently somewhat in conflict, will be found, on close inspection, to be based on the same general [443]principle, and their apparent restrictions and extensions of the rule will be found, in the main, to be mere applications of the same doctrine to varying facts. The difficult task always is to apply established principles to the facts of the case in hand.