Opinion
No. 32723.
September 27, 1937. Suggestion of Error Overruled November 22, 1937.
1. EVIDENCE.
Whether a statement is admissible as part of the res gestae depends upon the facts of the particular case.
2. EVIDENCE.
Generally, rule to be applied in determining admissibility of statements as res gestae is whether the declaration is a verbal act illustrating, explaining, or interpreting other parts of the transaction of which it is itself a part, or is merely a history or part of history of completed past affair in which case it is inadmissible.
3. EVIDENCE.
In action for death of motorist resulting from alleged negligence of defendant in parking bus over center of highway and in causing lights of bus to shine on highway with such brightness as to blind motorists approaching it, statements of deceased made after accident that lights blinded him, that he could not see, and that he tried to stop and could not, constituted a mere history or narrative of completed past affair and were inadmissible as res gestae.
4. EVIDENCE.
Statements by deceased following accident that lights blinded him and that he could not see, with evidence that he walked to nearby residence and asked that his son be called, did not show such shock or loss of mental faculties as would bring statements of deceased within exception permitting statements made while suffering from physical and mental shock to be admitted as part of res gestae.
5. AUTOMOBILES.
In action for death alleged to have resulted from negligence of defendant in parking bus over center of highway and in permitting lights to shine on highway with such intensity as to blind deceased, causing him to drive automobile off highway, where there was no evidence to prove such negligence, if any, caused or in any way contributed to the accident which occurred approximately 100 yards in front of bus, directed verdict in favor of defendant was properly entered.
APPEAL from the circuit court of Tishomingo county. HON. THOS. H. JOHNSTON, Judge.
Floyd W. Cunningham and Jas. A. Cunningham, both of Booneville, for appellant.
We contend that this glaring and blinding light needlessly turned upon this dangerous link of the road and needlessly maintained in the highway on the incline ahead of it constituted an unlawful and negligent blocking of the public highway, and that needlessly and carelessly to obtrude into the highway such an abundance of light as to blind the public traffic at so dangerous a place in the highway constitutes not only simple negligence but negligence of a very high degree; that you have not the authority to blind a person who is in a moving vehicle, rob him of his vision and leave him to the mercy of the momentum of a moving automobile on the very brink of a precipice; that it is similar in legal effect to blinding the pilot of an airplane with blinding gas or by extinguishing his lights and leaving him in the darkness, or destroy his sense of vision with any device whatever and leave him to the mercies of a struggle between the momentum of his plane and the laws of gravitation, which is so apt to result in ultimate death.
Schassen v. Columbus George Motor Coach System, 270 P. 530; Palmer v. Marcielle, 175 A. 31; 2 Restatement, Torts, sections 302-303; Mayor and Aldermen of City of Vicksburg v. Harralson, 101 So. 713; McWhorter v. Draughn, 102 So. 567; Duke v. Mitchell, 122 So. 189; Tucker v. Gurley, 170 So. 230; Chadwick v. Bush, 163 So. 823.
The instinct of self-preservation and the disposition of men to avoid personal harm reinforce an inference that a person killed or injured was in the exercise of ordinary care. For similar reasons it is to be inferred that the death of a sane person is not attributable to suicide.
22 C.J., Evidence, page 94, sec. 35; 16 Cyc. 1057; Jefferson Standard Life Ins. Co. v. Jefcoats, 143 So. 842; Massachusetts Protective Assn. v. Crawford, 102 So. 171; Texas, etc., R. Co. v. Gentry, 41 L.Ed. 186.
The court erred in excluding the evidence of O.P. Nunley, offered by the plaintiff as to the spontaneous statements made by plaintiff's decedent at and so near the time of the serious and fatal personal injury to decedent as to make such statements a part of the res gestae, being to the effect that decedent, while in his car which had just debouched from the fill into the gorge below, said, "How come me here?" or words to that effect; and the statement made just as he came out of the car and was being carried up the bank in a dazed condition, that, "The lights blinded me, I couldn't see, I tried to stop and couldn't," and other expressions to the same effect.
We especially invite the court's attention to the announcement of Corpus Juris on this subject of res gestae, Vol. 22, Evidence, beginning on page 443 and wish to state that in our opinion it affords the most lucid and clear-cut statement of the law of the res gestae of any subject it has been our pleasure to examine in all the four sides of Corpus Juris. For instance, sec. 543 on page 451 lays down the rule of the time elements and under the doctrine announced by that section the competency of this man Jones' spontaneous utterances in the car and as he was brought up the bank fatally injured, and as the witnesses offered, including his physician, show that he was dazed and so badly stunned that he grew worse and not better until the end; and as stated by his physician, he was in no mind to plan any sort of a statement to his advantage.
22 C.J. 462, secs. 548, 549 and 551.
All the authorities cited above reveal that the courts have held and are more strongly tending to be influenced by the necessity of such proof to meet the ends of justice, and on this point we are unable to see how a res gestae statement could have more meritorious consideration at the hands of the court.
Ala. Great Southern R. Co. v. Shannon, 68 So. 165; 3 Wigmore on Evidence.
The court erred in sustaining a general objection to the testimony of the witnesses, Leonard Harris, Charley Epperson, M.F. Marlar, and Lloyd Jones as to their knowledge from actual contact and experience of the glaring and blinding effect of these bus lights to one facing them.
22 C.J., Evidence, page 527, sec. 611; Dyer v. Hobert, 117 So. 244; Dillon v. State, 58 Miss. 368; Dixon v. State, 143 So. 855; Southern Ry. Co. v. Crowder, 33 So. 335; Alabama Power Co. v. Edwards, 121 So. 543; Alabama Great So. R. Co. v. Linn, 15 So. 508; 10 R.C.L., Evidence, sec. 131, page 958.
The evidence of these witnesses was admissible for an entirely different reason and for a reason well recognized by the law, to show the system and method employed by this driver with this bus on the highway to the knowledge of the decedent which throws light on his natural reaction to the bus when he looked forward and realized it appeared to be coming, and to sustain this view we cite the following authorities, to-wit:
S.H. Kress Co. v. Markling, 77 So. 858; Crawford v. City of Meridian, 154 So. 888; N.O. N.E.R. Co. v. Brooks, 165 So. 804; 2 Restatement, Law of Torts, sec. 303; 22 C.J., Evidence, 748, sec. 837.
The evidence of the above four witnesses should not have been excluded for general objections for still another reason which is founded upon principles well established by our courts, that these different observations of these witnesses were admissible to illustrate the blinding effect on decedent under the theory of demonstrative evidence.
22 C.J., Evidence, 565, sec. 667; Dyer v. Hobert, 117 So. 244; Amsbary v. Gray's Harbor Ry. Light Co., 8 A.L.R. 1; State of Missouri v. Allison, 85 A.L.R. 471. T.A. Clark, of Iuka, and Chandler, Shepherd, Owen Heiskell, of Memphis, Tenn., for appellee.
A motor vehicle parked on the highway for repairs or for other temporary purposes, must keep its lights burning as a notice to other users of the highway of the presence of the parked vehicle.
Frazier v. Hull, 157 Miss. 303, 127 So. 775.
An automobile driver must at all times drive his automobile in such a way as to be able to guide his car around the curves, down the descents, over the bridges and levees, and around the obstructions which may be in its path, and the exercise of due care requires that his automobile be kept under such control that he may stop within that portion of the highway lighted by his own lights.
Section 5571, Code of 1930; Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Terry v. Smiley, 161 Miss. 31, 133 So. 662; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 841; Frazier v. Hull, 157 Miss. 303, 127 So. 775; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522.
The law of the road requiring a traveler to keep to the right applies only to the meeting or passing of traffic. Provided there are no other teams or vehicles having occasion or desire to pass, one may use any part of the road which may suit his taste or convenience. One need not go to the extreme right, but is bound to leave merely sufficient room for the other vehicle.
29 C.J. 651, sec. 415; Young v. Cowden, 98 Tenn. 577.
This rule has not been changed by the Mississippi statute which merely provides that the operator of a motor vehicle "shall reasonably turn to the right of the center of the highway . . . so as to pass without interference."
Section 5574, Code of 1930; Crystal v. State, 147 Miss. 40, 112 So. 687; Priestly v. Hays, 147 Miss. 843, 112 So. 788.
To be actionable, the negligence complained of must be a proximate cause of the injury.
Hammond v. Morris, 156 Miss. 802, 126 So. 906; Pounders v. Day, 151 Miss. 436, 118 So. 298; Rowlands v. Morphis, 130 So. 906, 158 Miss. 662; Universal Tr. L. Co. v. Taylor, 174 Miss. 353, 164 So. 2.
The Mississippi Legislature has seen fit to regulate only the minimum amount of light required, and has not seen fit to limit the maximum amount allowed, thus leaving a discretion in the operator of the automobile to use more than the statutory minimum of light.
Section 5575, Code of 1930.
Testimony that lights upon defendant's motor vehicle were blinding or glaring, or were brighter than usual, is no evidence of negligence on the part of the defendant, as such testimony is not proof that the lights were in violation of the statute.
Carriveau v. Vatapek, 235 N.W. 445; Petteys v. Leith, 252 N.W. 18.
Whether a statement or act is or is not a part of the res gestae depends wholly upon the facts of each case; declarations are not admissible if they amount to no more than a mere narrative of a past occurrence. When the declaration is a verbal act, illustrating, explaining or interpreting other parts of the transaction of which it is itself a part, it is competent and admissible as part of the res gestae; but when it is merely a history, or part of a history, of a completed past affair, it is incompetent and inadmissible.
Jones on Evidence, sec. 345; Mayes v. State, 64 Miss. 329, 1 So. 733; Meek v. Perry, 36 Miss. 190; Vicksburg v. O'Brien, 119 U.S. 99, 30 L.Ed. 299; Woods v. Franklin, 151 Miss. 635, 118 So. 450; G.M. N. v. Hudson, 142 Miss. 542, 107 So. 369; V. M. v. McGowan, 62 Miss. 682, 52 Am. Rep. 205.
Declarations of a person injured when no one is present are not evidence to show the manner in which the injury occurred, however nearly contemporaneous with the occurrence.
10 R.C.L., Evidence, sec. 170; State v. Davidson, 30 Vt. 377, 73 Am. Dec. 312; State v. Pomeroy, 25 Kans. 349; Hancock v. Leggett, 115 Ind. 544, 18 N.E. 53; Chicago W.D. Ry. v. Becker, 128 Ill. 545, 21 N.E. 524; Chicago B. Q. v. Johnson, 36 Ill. App. 564; Eastman v. B. M., 165 Mass. 342, 43 N.E. 115; Johnson v. Oregon, 23 Or. 94, 31 P. 283; Texas N.O. v. Crowder, 70 Tex. 222, 7 S.W. 709.
Declarations to a doctor as to how an accident happened are equally inadmissible as narrative of past events.
Roosa v. Boston L. Co., 132 Mass. 439; I.C. v. Sutton, 42 Ill. 438, 92 Am. Dec. 81; Fordyce v. McCants, 51 Ark. 509, 11 S.W. 694.
Whether a particular declaration is admissible as a part of the res gestae or is inadmissible as narrative of past events and hearsay, is to be determined by the trial court under the particular facts and circumstances of the case in the exercise of his sound discretion.
Callahan v. C.B. Q., 133 P. 687; Barry v. Baker, 82 Fed. 2d 79; Provident Life Accident Ins. Co. v. Eaton, 84 Fed. 2d 528; Johnson v. Swords Co., 286 Ill. App. 377, 3 N.E.2d 705.
The admission or rejection of declarations as part of the res gestae must be left to the sound discretion of the trial court, and the exercise of that discretion will not be disturbed upon appeal in the absence of clear proof of an abuse thereof.
Provident Life Acc. Ins. Co. v. Eaton, 84 F.2d 528; Barry v. Baker, 82 F.2d 79; Commonwealth v. McPike, 3 Cush. 181, 50 Am. Dec. 727.
Where the particular facts are susceptible of proof, other prior acts or occurrences on different occasions and under different circumstances, or the customary conduct of the parties, are inadmissible.
Uhler v. Adams, 72 Miss. 535, 18 So. 367; 10 R.C.L., Evidence, sec. 104.
In order for experiments to be competent in evidence, it must be shown as a preliminary qualification of the testimony, that all of the material facts and circumstances were the same as the facts and circumstances of the matter in controversy before the court.
10 R.C.L., Evidence, sec. 190.
Argued orally by Jas. A. Cunningham, for appellant, and by A.L. Heiskell, for appellee.
This suit was instituted by the administrator of the estate of J. Whit Jones, deceased, against the Dixie Greyhound Lines, seeking to recover damages for the death of the said Jones, resulting from the alleged negligence of the defendant in parking its bus over the center of a highway, and in causing the lights of the said bus to shine on the highway with such brightness and intensity as to blind motorists who were approaching it. At the conclusion of the evidence offered by the plaintiff, a motion to exclude it was sustained, and a directed verdict in favor of the defendant was entered, and from this verdict and the judgment entered thereon this appeal was prosecuted.
The appellant offered evidence tending to show the following facts: On the night of January 9, 1934, the appellee was operating an eastbound passenger bus over Lee Highway. At a point about two and a half miles east of Iuka, Miss., it stopped on the highway for repairs. It stopped on level ground a few feet west of the residence of a witness, O.P. Nunly. From the point where the bus was parked, the highway was straight for some distance east and west. Eastward from where the bus was parked there was a decline or hill leading to a fill or embankment over a culvert and ditch at the bottom thereof, and eastward from this fill or embankment there was an incline or hill of considerable length. Before the bus stopped it was being operated with two headlights and one spotlight which, according to appellant's evidence, were brighter than ordinary automobile lights and threw a bright light directly on the road down to the embankment or fill and on to the side of the hill beyond it. The deceased was driving west on this highway, and as the automobile which he was driving was coming down the hill toward the embankment, at a point 64 feet from the culvert and ditch at the bottom thereof, it turned to the right, out of the traveled way, and continued at an angle along and down the embankment into the ditch. The point where the automobile went into the ditch at the bottom of the embankment was approximately 300 feet east of the bus, which was parked on the highway "about a foot and a half or two feet over the center thereof."
After the crash of the car in the ditch, the driver of the bus and certain passengers thereon hurriedly went to the scene. O.P. Nunly, whose residence was opposite the point where the bus was parked, was in bed at the time of the crash. He testified that he immediately got out of bed, dressed, and hurried to the scene of the accident. These parties helped the injured man up the embankment onto the road, and Nunly offered to testify that he then said, "How come me here," and next said, "The lights blinded me, I couldn't see, I tried to stop and couldn't." He further testified that the injured man stated that he thought the bus was coming, and that he turned gradually to the right until he got on the bank and then could not stop. Appellant also offered evidence to the effect that at the time the injured man made these statements at the scene of the accident, and repeated them at the residence of Nunly, and later to his physician, he appeared to be in a dazed condition.
In the absence of the jury, the court heard evidence as to the condition of the injured man at the time he made these statements, from which it appeared that after he was assisted up the embankment he walked to the residence of Nunly and there requested that his son be called; that in a short while his son came and carried him to his home, where he was immediately placed under the care of his physician, and that about three days later he was removed to a hospital, where he died about thirty days thereafter.
The court held that the statement by Jones at the scene of the accident, and also similar statements alleged to have been made at the residence of Nunly, and to his physician after he was carried to his home, constituted a mere history or narrative of a completed past occurrence, and were therefore not admissible as a part of the res gestae, and the action of the court in excluding this testimony, and particularly the testimony as to statements made at the scene of the accident, is assigned as error.
While the question of whether a statement is admissible as a part of the res gestae depends upon the facts and circumstances of the particular case, the general rule to be applied in determining the admissibility of such statements is very clearly stated by Judge Cooper in the case of Mayes v. State, 64 Miss. 329, 1 So. 733, 735, 60 Am. Rep. 58, in the following language: "It is not enough that the statement will throw light upon the transaction under investigation, nor that it was made so soon after the occurrence as to exclude the presumption that it has been fabricated, nor that it was made under such circumstances as to compel the conviction of its truth. The true inquiry, according to all the authorities, is whether the declaration is a verbal act, illustrating, explaining, or interpreting other parts of the transaction of which it is itself a part, or is merely a history, or a part of a history, of a completed past affair. In the one case it is competent; in the other it is not."
It appears to us that the statements sought to be introduced in this case clearly constituted a mere history or narrative of a completed past affair, and were therefore incompetent and inadmissible. And, if it be conceded for the purpose of this decision that, as contended by counsel for the appellant, severe physical and mental shock of the declarant at the time of making the statement renders admissible statements which would otherwise be inadmissible as a part of the res gestae, we are of the opinion that the facts and circumstances here in evidence do not show such shock or loss of mental faculties as would bring the statements here offered within such an exception to the rule.
With the declarations of the injured man properly excluded, there was no evidence whatever proving or tending to prove that the negligence, if any, of the appellee in parking the bus over the center of the highway, or in permitting the lights of the bus to shine on the highway, caused or in any way contributed to the accident, which occurred approximately 100 yards in front of the bus. Consequently, the peremptory instruction was properly granted.
Affirmed.