# Vicksburg v. O'Brien/Dissent Woods

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* Dissenting Opinion Woods
United States Supreme Court
119 U.S. 99
Vicksburg v. O'Brien
This case was decided at the last term of this court, and Mr. Justice WOODS concurred in the order of reversal upon the grounds herein stated.
For the errors indicated the judgment is reversed, and the cause is remanded for a new trial, and for further proceedings consistent with this opinion.
I am not able to give may assent to the judgment of the court in this case. The statement by the physician as to the condition of the injured party, the admission of which is held to have been error, was proved by his deposition to have been correct. Every material fact, also, which it contained, was established by his independent testimony. It would not be in accordance with the usual action of men, in the ordinary concerns of life, to reject, as incompetent evidence, a written statement thus made by a physician as to the condition of a patient under his charge, when it is subsequently proved by him to be true in all its details. And it should seem that evidence upon which every one would act without hesitation in the common affairs of life ought not to be excluded from consideration, except for clear reasons of policy, or long-established rules to the contrary, when those affairs are brought into litigation before the courts. If the recollection of the condition of the patient had passed from the mind of the physician, and he could still have testified that the statement made by him when the patient was under his charge was true, it would have been admissible. It is difficult, therefore, to find any just reason for excluding it from the fact that, in corroboration of its truth, the physician also testified to the facts therein stated.
The admission of the declaration of the engineer, as to the rate of speed of the train at the time of the accident, as, in my judgment, admissible as part of the res gestoe. The rails and cross-ties of the road were in a bad condition. Some of the rails had been used for over 40 years, and some of the cross-ties were decayed, and it appears that the accident was caused by a decayed cross-tie and a broken rail. As the declaration was made between 10 and 30 minutes after the accident, we may well conclude that it was made in sight of the wrecked train, and in presence of the injured parties, and while surrounded by excited passengers. The engineer was the only person from whom the company could have learned of the exact speed of the train at the time; to him it would have been obliged to apply for information on that point. It would seem, therefore, that his declaration, as that of its agent or servant, should have been received. The modern doctrine has relaxed the ancient rule that declarations, to be admissible as part of the res gestae, must be strictly contemporaneous with the main transaction. It now allows evidence of them, when they appear to have been made under the immediate influence of the principal transaction, and are so connected with it as to characterize or explain it.
The case of Hanover R. Co. v. Coyle, 55 Pa. St. 402, is in point. There it appeared that a peddler's wagon was struck by a locomotive, and the peddler was injured; and the question was as to the admissibility of the declaration of the engineer that the train was behind time, to show carelessness and negligence. The supreme court of Pennsylvania held it admissible. 'We cannot say,' said the court, 'that the declaration of the engineer was no part of the res gestoe. It was made at the time, in view of the goods strewn along the road by the breaking up of the boxes, and seems to have grown directly out of and immediately after the happening of the fact. The negligence complained of being that of the engineer himself, we cannot say that his declarations, made upon the spot, at the time, and in view of the effects of his conduct, are not evidence against the company as a part of the very transaction itself.'
What time may elapse between the happening of the event in respect to which the declaration is made and the time of the declaration, and yet the declaration be admissible, must depend upon the character of the transaction itself. An accident happening to a railway train, by which a car is wrecked, would naturally lead to a great deal of excitement among the passengers on the train, and the character and cause of the accident would be the subject of explanation for a considerable time afterwards by persons connected with the train. The admissibility of a declaration, in connection with evidence of the principal fact, as stated by Greenleaf, must be determined by the judge according to the degree of its relation to that fact, and in the exercise of a sound discretion; it being extremely difficult, if not impossible, to bring this class of cases within the limits of a more particular description. The principal points of attention are, he adds, whether the declaration was contemporaneous with the main fact, and so connected with it as to illustrate its character.
But, independently of this consideration, there is another answer to the objection taken to the admissibility of the declaration of the engineer. It was immaterial in any view of the case. The engagement of a railroad company is to carry its passengers safely; and, for any injury arising from a defect in its road, or in the rails or ties, which could have been guarded against by the exercise of proper care, it is liable. Its liability does not depend upon the speed of the train, whether it was one mile or eighteen miles an hour. Though as a carrier of passengers it is not, like a carrier of property, an insurer against all accidents except those caused by the act of God or the public enemy, it is charged with the utmost care and skill in the performance of its duty; and this implies not merely the utmost ttention in respect to the movement of the cars, but also to the condition of the road, and of its ties, rails, and all other appliances essential to the safety of the train and passengers. For all injuries through negligence, to which the passenger does not contribute by his own acts, it is liable. So it matters not what the speed of the train was in the case at bar, nor what was the declaration of the engineer in that respect.
I am authorized to state that the Chief Justice, Mr. Justice MILLER, and Mr. Justice BLATCHFORD concur in this dissent.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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