Opinion
No. 33210.
May 16, 1938.
1. EVIDENCE.
A servant's declaration made after an occurrence which is the foundation of an action against his master so that it is no part of the res gestae is not binding on master, and such a declaration to be competent evidence must be a part of the occurrence and must grow out of it spontaneously.
2. PLEADING.
In passenger's action against railroad company for injuries sustained when a window fell on her arm, trial court did not err in striking from passenger's declaration allegation that after injury occurred conductor admitted that window catch was defective, where passenger admitted that conductor was not present when injury occurred but came in after her arm had been released from window, since evidence to support declaration would have been incompetent.
3. CARRIERS.
A common carrier of passengers owed the highest degree of care to prevent injury to a passenger whose arm was injured when window fell on it.
APPEAL from the circuit court of Washington county; HON. S.F. DAVIS, Judge.
Ernest Kellner, of Greenville, for appellant.
Necessarily it seems to me that in sustaining the motion the trial court held that the statement of the conductor alleged in the declaration was incompetent. Certainly it cannot be argued that the motion was properly sustained because the statement of the conductor alleged in the declaration, which, of course, was admitted by the motion to strike, would have been prejudicial to the defendant unless it was incompetent. While it is true that it is the better practice to plead ultimate facts and not evidentiary facts a party is not injured thereby and cannot complain unless such evidentiary facts, when pleaded, are incompetent.
Southwest Metals Co. v. Gomey, 4 F.2d 215, 39 A.L.R. 1416; 21 R.C.L. 443, sec. 6.
How could the trial court, without hearing evidence which was not done, determine that the statement of the conductor alleged in the declaration, which appellee admits would have been highly prejudicial to it, was incompetent? That was impossible without hearing the circumstances under which the statement was made.
The matter of settling important questions involved in a case or disposing of the merits of a case on a motion has been recently discussed and condemned by this court in the case of McDowell v. Minor, 158 Miss. 788.
I respectfully submit that the trial court erred in striking from the appellant's declaration the statement of the conductor alleged therein and that such error was highly prejudicial to the appellant and therefore constitutes reversible error in this case.
It is settled law in this state that the verdict of a jury is erroneous when its ignores undisputed and unimpeached testimony of intelligent witnesses which is reasonable in itself and is in reasonable harmony with the physical facts and the facts of common observation among experienced persons.
Tarver v. Lindsey, 161 Miss. 379.
I respectfully submit that it was the duty of the jury in this case to accept as true the fact that the window fell on the plaintiff's arm resulting in her injury and that their verdict for the appellee cannot be reconciled with that fact in the light of the positive testimony of the witness Gibson that "if it (the window) was in proper condition, it would be impossible for it to fall," and that, therefore, the trial court erred in denying appellant's motion for a new trial.
H.P. Farish, of Greenville, for appellee.
The office of a motion is to bring to the notice of the court some matter or subject in the progress of a cause, which cannot be raised by plea or demurrer.
Griffith's Chancery Practice, sec. 400, page 413; Tully v. Herrin, 44 Miss. 639.
The authorities uniformly hold that matters of evidence may be striken from a pleading, especially where it manifestly appears that mischief and prejudice to the moving party might otherwise be produced.
49 C.J. 722, sec. 1015.
We agree with counsel that, at the time the motion was made, the competency of the alleged statement of the conductor was highly doubtful and could only be determined by a full inquiry into the surrounding facts and circumstances. For that reason also, the motion to strike, being addressed to the sound discretion of the court, was properly sustained.
Even though the trial court could not satisfactorily determine the competency of the statement upon this motion, the testimony of appellant plainly discloses that if any statement was made by the conductor, it would be incompetent as evidence and mere hearsay.
In the early and oft-cited case of Vicksburg and Meridian Railroad Co. v. McGowan, 62 Miss. 682, this court held that an employee's declaration made after the occurrence of an injury was inadmissible, as part of the res gestae, to bind a defendant railroad company.
Sims v. Forbes, 86 Miss. 412; Gulf, M. N.R. Co. v. Hudson, 142 Miss. 542; Woods v. Franklin, 151 Miss. 635; Bank v. Silver Saver Stores, Inc., 166 Miss. 882.
In Louisville N.R. Co. v. Compiretto, 137 Miss. 766, it was held at page 771: "The rule that a carrier of passengers is not an insurer of the safety of its passengers is so universally recognized that it does not require the citation of authorities to support it. That a carrier of passengers is required to exercise the highest degree of care and diligence for the safety of its passengers is established by the decisions of this court as well as the authorities generally, but it is only liable for injuries to passengers which are caused by its negligence in failing to exercise this high degree of care."
Y. M.V.R. Co. v. Hawkins, 140 So. 873; Teche Lines, Inc., v. Britt, 170 So. 294.
If there is any issue of fact bearing on the question of appellee's negligence vel non, the determination by the jury of such an issue in favor of appellee, supported by substantial evidence, must be sustained, and the motion for a new trial was properly denied.
Whitescarver v. Miss. Power Light Co., 5 F. Supp. 948, 68 F.2d 928; Mobile Ohio R.R. Co. v. Cox, 153 Miss. 597; Universal Truck Loading Co. v. Taylor, 172 So. 756.
Whether the degree of care imposed by the law on all carriers of passengers has been exercised should be determined from what was done, or omitted to be done, in the particular case.
4 R.C.L. 1152; Whitescarver v. Miss. P. L. Co., 5 F. Supp. 948, 68 F.2d 928.
This court has held that it is within the province of the jury to say whether appellee Railroad Company has, by its inspections and efforts in general, exercised or failed to exercise the proper degree of care toward appellant under the surrounding facts and circumstances.
Columbus G. Ry. v. Phillips, 160 Miss. 390; G. S.I.R.R. Co. v. Odum, 133 Miss. 543.
As to whether or not it was possible that the window was defective, this court has on two recent occasions, definitely announced that verdicts are to be founded, not upon possibilities but upon probabilities according to common knowledge, common experience and common sense.
Y. M.V.R.R. Co. v. Lamensdorf, 178 So. 80; Teche Lines, Inc., v. Bounds, 179 So. 747.
Appellant brought this action against appellee in the circuit court of Washington county to recover damages for an injury to her right arm, alleged to have been caused by the falling thereon of a window of one of the passenger cars of the appellee while she was a passenger thereon. The trial resulted in a verdict and judgment for appellee, from which judgment appellant prosecutes this appeal.
Appellant was a passenger on one of appellee's passenger trains from Greenwood to Greenville. She alleged that she had her right arm on the window sill when the window, on account of its defective condition, fell upon her arm causing the injury.
Appellant assigns and argues as error the action of the court in striking from her declaration, on motion of appellee, the allegation that after the injury occurred the conductor in charge of the train admitted that the catch to the window was defective, and he did not understand why it had not been repaired. The evidence showed that if such a declaration was made by the conductor it occurred after the injury and was no part of the res gestae. Appellant admitted as a witness in her own behalf that the conductor was not present when the injury occurred but came in after her arm had been released from the window.
We pass the question as to whether a motion to strike was the proper method of raising the question of the materiality of the allegation, and go to the question of the competency of the evidence in support of the allegation. The rule in this state, and we believe it is general in this country, is that the declaration of a servant made after the occurrence which is the foundation of the action, and which is no part of the res gestae, is without binding force on the master. Vicksburg M.R. Co. v. McGowan, 62 Miss. 682, 52 Am. Rep. 205; Simms v. Forbes, 86 Miss. 412, 38 So. 546; Gulf M. N.R. Co. v. Hudson, 142 Miss. 542, 107 So. 369; Woods v. Franklin, 151 Miss. 635, 118 So. 450; Deposit Guaranty Bank Trust Co. v. Silver Saver Stores, Inc., 166 Miss. 882, 148 So. 367. Such a declaration to be competent must be a part of the occurrence and spontaneously grow out of it. It follows that the action of the court in striking the allegation from the declaration was without harm to the appellant because evidence to support it would have been incompetent.
Appellant assigns and argues as error the action of the court in overruling her motion for a new trial on the ground that the verdict of the jury was against the overwhelming weight of the evidence. It is true, as contended, that appellee as a common carrier of passengers was due appellant the highest degree of care and diligence to prevent injury to her. We are of the opinion that there was ample evidence to the effect that appellee met that requirement. The finding of the jury was supported by competent evidence.
Affirmed.