Case 75 — Action by Eliza Shade’s Adm’b Against the CovingtonCincinnati Elevated R. R. & Transfer *&*Bridge Co. fob Damages foe Causing the Death of Plaintiff’s' Intestate.

Feb. 1.

#### Shade’s Adm’r v. Covington-Cincinnati Elevated R. R. & Transfer & Bridge Co.

APPEAL FROM KENTON CIRCUIT COURT-W. McD. SHAW, CIRCUIT JUDGE.

Judgment for Defendant and Plaintiff Appeals.

Affirmed.

Evidence — Statements to Physician — Cause of Injury — Res Gestae.

The statement by one injured, some time after the injury, to her physician, that the injury was caused by a fall on ice on defendant’s tollbridge, was not admissible as *res gestae*in an action for the injury.

MYERS & HOWARD, attorneys foe appellant.

We contend:

1. Where the proof shows that appellant’s intestate was in sound and robust health, able to do all her own house-work, and that immediately after the action complained of she was found in an almost helpless condition, was taken to her home, treated for the injuries received on this occasion, and within a few days thereafter died, if such facts did not conclusively prove that death was the result of injuries received, they were certainly sufficient to warrant a submission of the case to the jury as to the cause of her death.

2. Declarations made by the intestate to her physician while suffering pain resulting directly from the injuries, received, though made at a different place from that at which the in-' jury occurred, and after an interval of time had elapsed, furnishes the necessary connection between the transaction and the statement that will authorize the admissibility of the statement in evidence as to how the accident occurred.

3. The rule is well settled in this State that if a *prima facie*case is made out, or the evidence tends in any degree to support a right of recovery, it is error to give peremptory instruc*593tions. If the ease were open to douht as to the manner in which the accident to Mrs. Shade happened, or, as the authorities aptly express it, when the evidence is as consistent with the non-existence of negligence as it is with its existence, then the peremptory instruction in this case would have been proper-But when a very reasonable inference from the evidence points unerringly to the negligence of appellee, the peremptory instruction was an error.

AUTHORITIES CITED.

Shelby’s Adm’r v. Railroad Co., 85 Ky., 225; Shackelford’s Adm’r v. Railroad Co., 84 Ky., 44; Gregory v. Nesbit, 5 Dana, 421; Shay v. R. *&*L. T. Co., 1-, 109; Easley v. Easley, 18 B. M., 93; Trotter v. Sandei's, 7 J. J. Mar.,'321; Slaughter v. Morgan, 1 Met., 29; Stephen v. Brook, 2 Bush, 138; Eskridge Exors. v. Cincinnati, &c., R. R. Co., 89 Ky.

GALVIN *&*GALVIN, non appellee.

1. We submit that evidence of statements made by appellant’s intestate to her attending physician, not testified to by the physician, but by other witnesses who were present and claiming to have heard them, and which were made some days after the accident occurred, are not part of the *res gestae,*and therefore not competent.

2. There is absolutely no proof that decedent fell upon ice or that she fell at all, unless the statements of the two women as to declarations made by her to the doctor are admitted.

3. The rule is too well established in this State to need more than to call attention to some of the cases, that the burden of showing neglect in'a ease of this kind rests upon complainant, and that if the evidence shows that the injury may have resulted from any one of two or more causes, only one of which was due to defendant’s negligence, and the inference that the injury resulted from the one cause is no stronger than that it resulted from the other, plaintiff has failed to make out a case, and it is not competent for the court to leave the question to the jury.

4. We agree absolutely with the statement of counsel for appellant in closing their brief, “that if the case were open to doubt as to the manner in which the accident to Mrs. Shade happened, or, as the authorities aptly express it, when the evi*594deuce is as consistent with a non-existence of negligence as it is with its existence, then the peremptory instruction in the case would have been proper.”

AUTHORITIES CITED.

Vol. 4, Am. *&*Eng. Ency. of Law (2d ed.), 943, 945, 951; Prank-fort Bridge Co. v. Williams, 9 Dana, 403; Shearman & Redfield on Negligence (5th ed.), secs. 397, 363; Sehaefler v. Sandusky,. 33 O. S., 246; The Village of Leipsic v. Gei'deman, 68 O. S., 1; Hughes v. Cincinnati, &c., R. R. Co., 91 Ky., 526; Hughes’ Adm’r v. L. & N. R. R. Co., 23 Ky. Law Rep., 2288; Dame v. Laconia Car Co., 71 N. H., 407; Omberg v. U. S. Mutual Accident Ass’n,. 101 Ky., 303; Travelers’ Insurance'Co. v. Moseley, 75 U. S., 397; Dabbert v. Travelers’ Insurance Co., 2 Cin. Sup. Ct. Rep., 98; Northern Pacific R. R. Co. v. Urlin, 15S U. S., 271; Williams v. The Great Northern R. R. Co., 37 Lawyers’ Rep., Annotated, 199; Chapin v. The Inhabitants of Marlborough, 9 Gray (Mass.), 244; Denton v. The State, 1 Swan (Tenn.), 279; L. & N. R. R. Co. v. Ellis’ Adm’r, 97 Ky., 330; Brown v. The Louisville Ry. Co., 21 Ky. Law Rep., 995; C., C. & C. R. R. Co. v. Mara, 2G O. S., 185; Guild v. Pringle, 130 Fed., 419; B. & O. R. R. Co. v. McClellan, 69 O. S., 143, at 159. “The law demands proof and not surmises.” Hughes v. R. R., 91 Ky., *supra;*Hughes’ Adm’r v. L. *&*X. R. R. Co., 23 Ky. Law Rep., *supra;*U. S. v. Ross, 92 U. S., 281, 283, 2S4; Bond v. Smith, 113 N. Y., 378, 385; Dame v. Laconia Car Co., 71 N. H., *supra.*

Opinion of the court by

JUDGE O’REAR

Affirming.

Eliza Shade' was discovered on 38th of February, .1902, on or near the northern end of appellee’s bridge, injured; her leg, or one hone of it, being broken. Possibly she was otherwise hurt. She was sent in a carriage to her home, in Covington, and died in a few weeks. Whether she died of the injuries received on the bridge was not proven. In this suit by her administrator against appellee, the owner of the toll-bridge, to recover damages for her injury and death, the plaintiff declared upon the negligence of appellee in suffering its bridge to he and remain in unfit condition by the accumulation of ice and snow upon the passenger footway. At *595ilie close of the evidence the court peremptorily directed a verdict for the defendant.

It is doubtful whether there was any evidence that the bridge was in an unfit condition for travel by pedestrians .at the place and at the time where Mrs. Shade fell, if she fell on the bridge. That there was considerable ice and snow ¡elsewhere and at other times on the bridge does not satisfy plaintiff's allegation or sustain his action. But assuming that there was at least a scintilla of evidence that the bridge was in dangerous condition throughout from the accumulation of ice and snotv negligently allowed by appellee, during the whole of the day Mrs. Shade was injured, there is- still a hiatus in plaintiff’s case. There was no proof that she fell "because of the ice and snow, or that she was herself in the ■ exercise of due care, or that her injuries were caused by the condition of the bridge. The witness Waring does not at all identify Mrs. Shade as one of the persons whom he says he helped up from falls about that time. Indeed, his evidence rather shows that she was not. Plaintiff’s case rested, if it ¡can be maintained at all, upon the declaration made by Mrs. '.Shade to her physician, some time after she had been taken to her home, that she had fallen on the ice on the C. & 0. bridge (the name by which appellee's bridge is popularly -called). It is contended by appellant that her declarations made to her physician in explanation of the cause of her injury, and made to him to enable him to treat it, are of .the *res*gestae, and receivable in evidence as such. “Where the bodily and mental feelings of a party are to be proved, the usual and natural expressions of such feelings, made 'at the time, are considered competent and original evidence in his. favor. There are ills and pains of the body, which are puoper subjects of proof in a court of justice, which can be *596shown in no other way. Hueh evidence, however, is not to he extended beyond the necessity on • which the rule is founded. Anything in the nature of narration or statement is to he carefully excluded, aud the testimony is to be confined strictly to such complaints, exclamations, and expressions as usually and naturally accompany and furnish evidence of a present, existing pain or malady.” Bacon v. Charlton, 7 Cush., 586. Here the party whose statement is-, offered to be proved was suffering from a physical injury.. What she said to her physician as to the pain it then caused, her, and the effect it had upon her senses, was necessary for-him to know in order that he might intelligently treat the injury. Under such circumstances-, it is presumed that the party suffering will state truly how she is affected, as otherwise the medical man might he at a loss as to the remedies: needful to her condition. The incentive for a fair statement is so great that the presumption is she will not hazard an untruth to better her financial condition, as toy fabricating; a basis' of claim against ihe person charged with her injury-at the expense of her permanent health, or maybe of her-life. For that reason the law allows the proof of what sbe said to her physician at the time of his examination, as part of the *res gestae.*What the injured party may have- said to any one'at the time of the injury, or so immediately after it as to be regarded part of it, as being the verbal part of-a continuing occurrence, would: also be admitted, upon familiar grounds. What was said after the lapse* of some-minutes — a half hour or so- in this case — to the attending* physician, to aid him in determining the nature of the injury and to prescribe a remedy or treatment, is allowed, as: an extension of the same rule* of evidence. It rests, logically-upon the necessity of the case. It is matter proper to be: *597shown, and not susceptible generally of being otherwise proven. But it must stop with ilxe necessity for it. It was necessary for the physician to know whether the patient was suffering, and where the pain was, and as to its character. It was also proper that he should, know how the injury was, inflicted', as upon that knowledge his treatment, in part, might depend. So it was competent to show that the patient said she had received a blow on her head, if she did say it, and how she was otherwise hurt. But it was wholly immaterial to the physician’s understanding what it was necessary for him to know in treating the injuries whether she fell on appellee’s bridge or elsewhere, or that she fell on ice.

The opinion in Omberg v. U. S. Mutual Accident Ass’n., 101 Ky., 303, 19 R., 462, 40 S. W., 909, 72 Am. St. Rep., 413, is relied on by appellant. -In that case the patient, who was suffering from an inflamed toe, the result of septic poisoning, told his physician that it was caused by a mosquito bite at the affected 'spot. The evidence was) held to be competent on the ground that the statement was necessary, or at least proper, to enable the physician to understand the illness, and was part, of the description of the wound, and inseparable from the patient’s complaint with respect thereto. But the court was careful to. restrict the application of the rule to statements made by the patient to the physician in the treatment of the malady, and added: “A narrative of the events attending the mishaps would not be competent.” Nor was a narrative of the events attending the mishap competent in this case.

The judgment must be affirmed.