Ryan v. Gilmer

Blake, J.

The appellants are husband and wife, and bring this action to recover damages for a personal injury sustained by the wife, December 15, 1873, in consequence of the alleged negligence of the respondents. At this time the respondents were carriers of passengers in the Territory and received the fare from appellants for their transportation from Watson to Helena. At a point near Beavertown, the respondents’ sleigh or “ bob-sled,” in which the passengers were being conveyed, was turned suddenly on one side and Mrs. Byan, one of the appellants, was thrown about seven feet from her seat and received the injury described in the complaint. At the trial, the court sustained the motion of the respondents for a nonsuit and we are called upon to review this ruling.

In tbis class of cases it is tbe well-settled rule tbat it was necessary for tbe appellants to prove tbat there was no negligence, or want of due and reasonable care on tbeir part wbieb contributed to tbe injury, and tbat it was caused entirely by tbe want of sucb care on tbe part of tbe respondents. Southworth v. O. C. & N. R. Co., 105 Mass. 342. In tbis action tbe accident was not tbe effect of any act of tbe appellants, and there is only one question before us for determination. Did tbe evidence tend to prove tbat tbe sleigh was overturned by tbe negligence of tbe respondents, or tbeir servant ?

Tbe appellants claim tbat the court erred in excluding tbe declarations of tbe driver of tbe respondents, wbieb were made immediately after tbe accident and during tbe time tbat he was engaged in tbe performance of bis duties. He then said tbat be was sorry tbat she (Mrs. Eyan) was hurt; tbat be could have avoided tbe overturning of tbe sleigh if be bad been paying tbe slightest attention; and tbat it was bis carelessness, and there was no necessity for it. Tbe representations or admissions of tbis agent will bind tbe respondents, if they were made within tbe scope of tbe authority which bad been confided to him. Story on Agency, § 134. W e think tbat an examination of tbe following cases shows tbat tbis principle is not applicable to the statements of tbe respondents’ driver, which the appellants sought to prove in tbe court below. In Luby v. Hudson R. R., 17 N. Y. 131, it was held tbat tbe declarations of tbe driver of a car, wbieb bad run against and injured a person, made after tbe accident occurred and while be was in charge óf the car, tbat be could not stop tbe car because tbe brakes were out of order, were not competent against tbe company tbat employed the driver. In Robinson v. Fitchburg R., 7 Gray, 92, which was an action against a railroad corporation for damages caused by a colbsion through tbe negligence of tbe engineer, it was held that tbe declarations of tbe engineer respecting tbe accident, made a number of days afterward, were not competent against tbe company. Tbe supreme court of tbe United States has recently considered tbe same question in Packet Co. v. Clough, 20 Wall. 528. It was held tbat tbe conversation of tbe captain of a steamboat with a party who was injured in going upon tbe boat, made two and one-half days after the accident occurred, in which he stated that the injury was caused by the carelessness of the hands in failing to put out the regular plank, was ■ not competent against the owners of the boat. Mr. Justice StboNG, in delivering the opinion of the court, said: “ But an act done by an agent cannot be varied, qualified or explained either by his declarations, which amount to no more than a mere narrative of a past occurrence, or by an isolated conversation held, or an isolated act done at a later period. 1 Taylor on Evidence, § 526. The reason is that the agent to do the act is not authorized to narrate what he had done or how he had done it, and his declaration is no part of the ‘ res gestee.’ ” In a later case, the same high tribunal held that “ the opinion of an agent, based upon past occurrences, is never to be received as an admission of his principals * * * .” Insurance Co. v. Mahone, 21 Wall. 157. Sir William GeaNT discusses this proposition in Fairlie v. Hastings, 10 Ves. 123, and says: “If any fact, material to the interest of either party, rests in the knowledge of an agent, it is to be proved by his testimony, not by his mere assertion.” Story on Agency, § 136, and cases there cited; Anthony v. Estabrook, 1 Col. 76, and cases there cited; M. & M. R. Co. v. Fenney, 10 Wis. 388.

In the case at bar, what the driver said to the appellants concerning the accident was the narrative of a past occurrence and could not affect the liability of his principals. In the authorities which have been referred to, the number of hours or days that elapsed after the occurrence of the accident complained of, and during which the agent made certain admissions against his principal, is treated as an immaterial fact. If they were uttered before the journey upon which the injured party entered was ended they were mere narration. When the respondents’ driver made the statements to the appellants, which have been specified, “ the accident was past,” and the injury to Mrs. Ryan was complete. “ The only wrong she sustained, if any, had been consummated.” Packet Co. v. Clough, supra. Therefore the court did not err in excluding the declarations of the respondents’ driver.

It will be necessary to state the testimony of the appellants relating to the alleged negligence of the respondents, to show the nature of the legal question which must now be considered. It appears that the appellants had been conveyed in a coach from Watson to a point which is south of Beavertown, where the sleigh or “ bob-sled ” was furnished by the respondents for the purpose of transporting the appellants and express matter and mail sacks. When the accident took place the parties were traveling upon a good level road at the rate of about five or six miles per hour, and the snow on the ground made fine sleighing. The horses were strong and under the control of the respondents’ driver and were stopped immediately, without any difficulty, and the sled did not run out of the road or track. The appellants know of no cause for the upsetting of the sleigh, although Mr. Ryan, one of the appellants, made a careful examination at the time for the purpose of discovering it. Upon this subject, the evidence does not enlighten ns.

When these facts are reviewed it will be seen that only one question can be discussed. Did the appellants support their allegation of negligence on the part of the respondents by producing testimony, which tended to prove that the accident occurred, without the fault of the appellants, under the circumstances which have been pointed out ?

The complaint in this case contains the same allegations as the declaration at common law in similar actions. No contract between the appellants and respondents is set forth in the pleadings, or mentioned in the evidence, which is in conflict with the obligations that the law has imposed upon the respondents as common carriers of persons. The appellants were passengers for hire. What was the duty of the respondents ? They were required to carry the appellants from Watson to Helena as safely as human foresight and reasonable care would permit. The nature and limitations of this obligation have been defined accurately in the following authorities. “Carriers of passengers for hire are bound to use the utmost care and diligence in the providing of safe, sufficient and suitable coaches, harnesses, horses and coachmen in order to prevent those injuries which human care and foresight can guard against.” Ingalls v. Bills, 9 Metc. 1. The proprietor of a stage-coach covenants that he will insure the safe carriage of passengers by the exercise of extraordinary diligence and care, and is responsible for any neglect. Fairchild v. California S. Co., 13 Cal. 605. “ Out of special regard for human life, and acting upon the presumption that every man who commits his person to the charge of others expects from them a higher degree of care for his bodily safety than they would bestow upon the preservation of his property, the law very wisely exacts from a carrier of passengers for hire the utmost care and skill which prudent men are accustomed to use under similar circumstances.” Shearman & Redfield on Negligence, § 266, and cases there cited; Story on Bailments, § 601; Ficken v. Jones, 28 Cal. 627; Wheaton v. N. B. & M. R. R. Co., 36 id. 583 ; Stokes v. Saltonstall, 13 Pet. 181; The Nitro-Glycerine case, 15 Wall. 537; Angell on Carriers, §§ 521-524, 568, and cases there cited; Wharton on Negligence, § 621, n. 3 ; 2 Kent’s Com. 601 and notes.

Did the respondents violate any of these duties which were incumbent upon them ? The respondents had the exclusive control and management of the sleigh when it was upset. The nature of the accident has been explained by the testimony. Should the question whether there was a want of due and reasonable care on the part of the respondents have been submitted to the jury ? The sufficiency and effect of the evidence on behalf of the appellants appear to be determined in many cases. The supreme court of the United States has considered these questions. In Stokes v. Saltonstall, 13 Pet. 181, the plaintiff commenced an action to recover damages for an injury sustained by his wife by the upsetting of a stage-coach in which she was a passenger. The court held that “ the facts that the carriage was upset, and the plaintiff’s wife injured, are prima facie evidence that there was care- • lessness, or negligence, or want of skill on the part of the driver, and throws upon the defendant the burden of proving that the accident was not occasioned by the driver’s fault.” In Railroad Co. v. Pollard, 22 Wall. 348, the doctrine of the case of Stokes v. Saltonstall, srtpra, was attacked by the counsel for the plaintiff in error, but Mr. Chief Justice Waite said : “ We see no necessity for reconsidering that case.” In The Nitro-Glycerine case, supra, Hr. Justice Field delivered the opinion and said : “ The cases between passengers and carriers for injuries stand upon a different footing. The contract of the carrier being to carry safely, the proof of the injury usually establishes a prima facie case, which tbe carrier must overcome. His contract is shown, prima facie at least, to have been violated by tbe injury. ” In Boyce v. California S. Co., 25 Cal. 460, tbe plaintiff brought tbe action to recover damages on account of personal injuries sustained by him by reason of tbe upsetting of tbe defendant’s coach on which be was a passenger. Mr. Chief Justice SaNDEksoN delivered tbe opinion and said: “ Admitting for tbe sake of tbe argument, that tbe allegation of negbgence is as narrow as counsel for appellant claims it to be, and that tbe cause of tbe accident is unexplained by tbe testimony, and that tbe general reputation of tbe driver for care and skill is established beyond question by tbe evidence, it does not follow that tbe overturning of tbe coach is to be charged to tbe account of unavoidable accident, or to some cause which human care and foresight could not prevent, and therefore tbe defendant excused from all habihty for tbe consequences to tbe plaintiff. Tbe argument places tbe burden of explanar tion upon tbe shoulders of tbe plaintiff ; but, unfortunately for tbe argument, tbe law places it upon tbe shoulders of the defendant. Upon tbe trial of an action of this character, it is only necessary for tbe plaintiff to prove tbe overturning of tbe coach and tbe injuries caused thereby. Having -done this be may rest, for tbe presumption is that tbe overturning occurred through tbe negligence of tbe coachman, and tbe burden of proving that there has been no negbgence is cast upon tbe defendant. How tbe overturning occurred is no part of tbe plaintiff’s case. Tbe fact that tbe coach did overturn is all that be need estabhsh in •order to recover for such injuries as be may have sustained.., In order to rebut this presumption of negbgence, the defendant must show that tbe overturning was the result of inevitable casualty, or some other cause which human care and foresight .could not prevent, for tbe law bolds him responsible for tbe sbgbtest negbgence, and wib not bold him blameless except upon the most satisfactory proofs. In doing this tbe defendant must necessarily explain bow tbe overturning occurred, and if be fails to do this, tbe presumption of negbgence remains. * * * Counsel, by admitting that tbe overturning occurred, to tbe personal injury of tbe plaintiff, and that such overturning is unexplained by tbe evidence, admits that a cause of action has been established, against which he has shown no defense.” In Yeomans v. C. C. S. N. Co., 44 Gal. 84, the case of Boyce v. California S. Co., supra, was affirmed, and the court refers to “ the application of the well-settled principle, that as between a passenger and a common carrier of passengers, the proof of the occurrence of an accident, without fault of the passenger,-is prima facie proof of negligence on the part of the carrier.” The legal principles which have been announced are applicable to this case, and are sustained by the authorities. Story on Bailments, § 601, a; Fairchild v. California S. Co., supra ; Fichen v. Jones, supra ; Feital v. Middlesex R. Co., 109 Mass. 405; Angell on Carr., §§ 61, 569, and cases there cited; Shearman & Redfield on Negl., § 280, and cases there cited; McKinney v. Neil, 1 McLean, 540 ; Stockton v. Frey, 4 Gill. 406; Farish v. Reigle, 11 Gratt. 697; Wilkie v. Bolster, 3 E. D. Smith, 327.

It follows that there was evidence relating to the alleged negligence of the respondents, which should have been submitted to the jury. The court erred in assuming that the testimony did not have a tendency to prove that there was.a want of due and reasonable care on the part of the respondents. The authorities which have been cited refer to the upsetting or overturning of a coach or wagon. The respondents used voluntarily a sleigh or “bob-sled” upon a portion of the route between "Watson and Helena, and allege in their answer that this means of conveyance was the most convenient and suitable at the place where the accident occurred. There is nothing in the character of this vehicle which modifies the rules of law that have been referred to.

It is therefore ordered that the judgment of the court below be reversed with costs, and that the action be remanded for a new trial.

Judgment reversed.

KNowles, J., concurred.