1. Where, as here, evidence is a part of the res gestae and admissible as original evidence to fix the locus or explain the conduct of parties in reference to an occurrence under investigation it should not be excluded under the hearsay rule.
2. Where, as in this case, the evidence conclusively shows that the defendant's employees committed one or more of the acts of negligence charged in the petition and on which the cause is predicated, and authorizes the conclusion that such negligence was the proximate cause of consequences from which damages flowed to the plaintiff, the trial judge errs in directing a verdict for the defendant.
Mrs. Pauline Ellis sued Southern Railway Company for damages because of the death of her husband, Brice Ellis, who was allegedly struck and killed by a train of the defendant within the city limits of Dalton on November 30, 1951. The petition is in five counts, and briefly stated, the material allegations of count 1 are: that in the southern part of the City of Dalton there is a public street known as Franklin Street, which runs east and west; that, though there is no vehicular crossing where said street intersects the defendant's main-line tracks, which run in a northerly and southerly direction, there is a well-defined pathway which connects the portions of Franklin Street to the east and west of the right-of-way; that said pathway is maintained by the defendant and has been in continuous and uninterrupted use by the public, with the knowledge and consent of the defendant for a period of more than 20 years; that the area of the City of Dalton at that point and for some distance both north and south thereof on both sides of the defendant's tracks, is densely populated with numerous industries and business establishments, as well as homes; that approximately 300 yards north and 258 yards south of the said pathway there are public streets of the City of Dalton which intersect the said main-line tracks of the defendant, forming public vehicular crossings thereof; that there are numerous well-defined pathways besides the one referred to above which also cross the said main-line tracks of the defendant between these two public street crossings; that these said pathways, as well as the well-defined pathway which runs in a north and south direction and parallel to the defendant's tracks for some distance both north and south of the first-mentioned pathway, are used by the public regularly day and night, and have been so used continuously for a long number of years; that on the date first mentioned, shortly before 7:45 p.m., Brice Ellis, the plaintiff's husband, entered upon the defendant's railroad tracks over the first-mentioned footpath for the purpose of crossing from the west to the east side of the tracks; that, in entering upon said tracks, the plaintiff's husband either fell and was temporarily stunned or sustained some sort of physical collapse or illness as a result of which he sat down on the tracks with his face in his hands and was in this position when a passenger train of the defendant approached from the north at approximately 7:45 p.m.; that the track at this point was sufficiently straight for the fireman on said train to have seen the plaintiff's husband a distance of 400 feet, and for the engineer to have seen him a distance of 360 feet; that it was the duty of the fireman and engineer to keep a constant and vigilant lookout ahead along the tracks; that the train, being a 16-car passenger
The allegations of fact of the other 4 counts of the petition are substantially the same as in count 1, the only difference in the various counts being that counts 1 and 2 are based on simple negligence, count 3 is based on wilful and wanton failure of the defendant's servants to take steps to avoid striking Ellis after they actually saw him on the tracks, and count 4 alleges that Ellis was using the trail parallel to the tracks and about 40 feet south of the Franklin Street crossing path, when he suffered the collapse, and count 5, like count 3, is based on wilfulness and wantonness.
The answer substantially denied the material allegations of the petition, and, though admitting the existence of pathways leading to and upon its right-of-way, denied that there was any well-defined pathway on the right-of-way or along the tracks themselves; but, for lack of sufficient information, it neither admitted nor denied that the pathways were used by the public as alleged, and denied that it maintained the pathways. The defendant, in its answer, admitted that the area adjacent to the scene of the homicide was a densely populated one as alleged in the petition, and admitted the homicide of the plaintiff's husband by its train on the date and time in question, but alleged that due to a curve in its tracks, which caused the headlight to shine to one side of the track rather than on the track itself, the deceased was not visible to its engineer and fireman and was not observed by them until the train was within 100 feet of where Ellis was struck by the train. The answer further alleged that Ellis was observed lying with the back of his head on the west rail of the defendant's track, with his body extending to the west of the rail and lying on the ballast that extended approximately two feet from the ground at a sharp angle upward supporting the crossties, and that his feet were resting on the earth west of the said ballast. The defendant alleged that the train at the time was traveling approximately 35 miles per hour, and that, immediately upon observing Ellis's body, as described, the engineer applied the brakes and did everything possible to stop the train and avoid striking Ellis but was unable to do so.
After the evidence was introduced, the trial court directed a verdict in favor of the defendant. The plaintiff filed a motion for new trial on the general grounds and by way of amendment added special grounds. The trial judge denied the amended motion for new trial. The defendant excepted to the ruling.
The special ground complaining of the directed verdict alleged that the evidence necessary to render the ground complete was set out therein and the trial judge approved the ground as true. The evidence referred to was as follows: "The plaintiff testified that she and the deceased were married and testified as to names and ages of their children and that she saw him alive about 5:15 p.m. on the day he was killed, that he was at home and said he would keep the house warm for them and she took their children to a show and was notified of his death when she returned from the show around 8 p.m. Her testimony of his health and earning capacity supported substantially the allegations of the petition. She testified that she had been familiar with the railroad at point in question for about 28 years and that the trail across tracks at Franklin Street had been in continuous use by the public since she first knew it, that she had traveled over this trail many times, that the defendant railroad, 28 years before her husband was killed, had put crossties on pathway over ditch just east of the tracks and that the ties were still on the trail across the ditch at said place when he was killed; that the area on both sides of the tracks at this point were thickly settled at the time that her husband was killed, and she, as well as some of the witnesses, testified substantially in support of the allegations of the petition as to number of trails across the railroad track in vicinity and the frequency and duration of use in support of petition. Plaintiff testified that she and her husband and their children lived on McCamy Street near the scene of the accident at the time of his death.
"J. D. Noble, policeman of Dalton, was on duty near scene at the time, being at intersection of McCamy and Franklin Streets, west and approximately 300 feet away. He said his attention was first attracted by flashlights in the hands of the train porters coming up the track toward where the man was killed, and that he arrived at scene, after making two telephone calls, about 5 minutes later and began making the investigation as such officer and the conductor came up and also began making an investigation. Noble said he did not hear train whistle or bell and he had been there for 20 to 30 minutes, but if whistle had blown or bell rung he could have heard it. He said the wound on the deceased's face flopped open and that the blood was warm enough that he felt the warmth bending down over the body. The entire passenger train was south of the body, the rear end being about 100 feet away. He and the undertaker both testified that the left side of the deceased's face was hit and split open. Deceased was lying west of the rails, with his feet touching the ties and his head away from the rails, and a short distance of about 40 feet south of Franklin Street trail that crosses the railroad tracks. Said night light there, there being enough light to see a person. Testimony of several witnesses was to effect railroad tracks at this point were slightly curved and down grade for train going south, and train does not make much noise going south.
"Ralph Dyer, a groceryman near the home of the deceased, said he saw him in the store about 7:30 p.m. on night in question and deceased appeared to be normal and told him if he did not return before closing to put Ellis's fuel on his porch.
"Martin Roberts, a grocery merchant on South McCamy Street near the scene of the death of Brice Ellis and who had been there for many years, testified that the trails across the defendants tracks in vicinity of fatal injury to Brice Ellis had been continuously used by the public both day and night for a number of years, and the trails showed long and great use through wear.
"He further testified that he was at the scene of the accident one night in October, 1954, during the progress of this trial, and observed a diesel engine with a single stationary beam of light coming south and observed where the train was when the light from the engine first played on the tracks where Brice Ellis was killed, a distance of 75 to 85 yards away. It was stipulated by the defendant that the diesel engine in question had a single, stationary light.
"Defendant used one of its witnesses, Oscar Frix, its engineer, who testified he was 77 years of age and had been running a passenger train over this route for 15 years, and had been running over this route practically all the time of his service for the past 48 years. He admitted that Brice Ellis was killed by the running train. He had a 16-car train with double diesel, the cars were each 75 to 90 feet long and both units of diesel 60 to 75 feet. He admitted on cross-examination that the train was 55 minutes late on the night and time in question. He would not swear that the train had a bell that night. Although he said he saw the man 100 feet away, he did not apply the emergency brakes and the train ran more than its length after hitting Ellis before being brought to a stop. Said that they tried to make up time when they could and were behind, but 'the schedule is about all that you can make with that kind of train.' Said diesel engine was set for 73 miles per hour and on some stretches he can run as much as 70. He said that he stopped in Dalton, at the depot, about half mile north of the scene of the injury, and that when he left there he opened the throttle 2 notches at the time, at intervals of a few seconds there being 8 notches in all, and he had it opened 4 notches when he crossed the N. C. & St. L. crossing, which is near the railroad depot, and later denied this, and also denied that he had said there were 8 notches to the throttle. He admitted he did not know whether or not the throttle was wide open when he approached the place where Brice Ellis was killed, and added 'If it had been, what difference would it have made.' Said the track was dry and down grade and the train picked up more speed under such conditions. Said from railroad station to place where man was killed would be 2 1/2 train lengths, it would take one mile to stop a train running at 60 miles per hour. Said engineer further testified that the place of the fatal injury after seeing Brice Ellis, which he said was 100 feet before striking him, he could not have stopped the train had it been going only 10 miles per hour. Said the track has been on this curve since he first began operating over it and was familiar as to how far he could see an object ahead by the light on the front of the train. He said the light on the front of the train was sufficiently strong to disclose an object one-half mile ahead if the railroad was straight. Later said if engine had been wide open it would have taken him to Phelps or brickyard to reach 60 miles per hour, and said it was about 3 miles to brickyard, from railroad station. There was no evidence speed was reduced before trainmen saw Brice Ellis."
The defendant insists that other parts of the evidence should be considered. Where a ground of a motion for new trial complaining of the direction of a verdict alleges that it contains the evidence necessary to the consideration of the ground and the trial judge approves the ground as true, this court may look to other parts of the evidence to ascertain whether the evidence as a whole demanded the verdict. In this case the evidence the defendant contended was material was considered together with the entire brief of evidence. Some of the facts stated were contained in the report of an opinion rendered on the previous appearance of this case, but for the sake of continuity it was necessary to repeat those facts in this statement of facts.
1. The plaintiff contends that the trial court erred in excluding the testimony of a witness, J. D. Noble: "The fireman told me that he saw,--well, this is the statement he made: 'I saw the man sitting on the track in the slumped over position,' and he said he just saw the man in a slumped over position and that the man heard the train and turned and looked and it was too late; he made an effort to move. He said he heard the train coming and started to get up--looked."
The objection interposed to the testimony was that it was hearsay. We are of the opinion that the testimony objected to was admissible as a part of res gestae under the holdings in the cases of: Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 755 (12 S. E. 18); Mitchum v. State, 11 Ga. 615 (5); Alvaton Mercantile Co. v. Caldwell, 34 Ga. App. 151, 153 (128 S. E. 781); American Surety Co. v. Smith, 55 Ga. App. 633, 640 (191 S. E. 137).
The testimony of Noble was admitted under Code 38-302 being in its nature original evidence rather than mere hearsay. "It is true this testimony is hearsay, but for the purpose of identifying location, or time, or as explanatory of conduct, hearsay is admissible." Stamps v. Newton County, 8 Ga. App. 229
, 235 (68 S. E. 947); McBurney v. Richardson, 93 Ga. App. 138
, 141 (91 S. E. 2d 123). The testimony objected to was evidence of material physical facts such as the posture of the deceased as the train approached and came upon him. It also served to explain the conduct of the engineer and fireman in charge of the engine on the occasion under investigation, being illustrative of the issues as to whether the speed of the train, the failure to ring the bell, to have the train under proper control and to exercise ordinary care to anticipate the presence of the deceased at the locus of the collision was the proximate cause of his death. Central of Ga. Ry. Co. v. Dabney, 44 Ga. App. 143 (4)
(160 S. E. 818); Seaboard Air-Line Ry. Co. v. Benton, 43 Ga. App. 495
(159 S. E. 717); Cohen v. Parish, 105 Ga. 339 (3)
(31 S. E. 205); Clayton v. Tucker, 20 Ga. 452 (2)
2. The defendant contends the verdict directed was demanded because the evidence adduced by the plaintiff was lacking in several elements of proof essential to evince the truth of the allegations of the petition and establish the right of recovery, and for the further reason that the evidence submitted on the trial of the case showed without material conflict that its servants in charge of the engine on the occasion under investigation were not negligent in any of the particulars alleged in the petition. If either position is correct the trial judge properly directed the verdict.
(a) Treating the contentions referred to in the preceding division in reverse order from that stated, we will consider the question as to whether the plaintiff's evidence was prima facie proof of the acts of negligence charged, and whether the defendant's evidence vindicated its trainmen of failing to exercise the degree of care required of them. Let us first state the rules by which the conclusion of both questions must be arrived at.
The rule is ancient and well founded that the duty owed a trespasser is not to wilfully inflict injury upon him after his presence becomes known, or should in the exercise of ordinary prudence be known to the defendant upon whose premises he comes. Pope v. Seaboard Airline Ry., 21 Ga. App. 251 (94 S. E. 311); Chattanooga Railway &c. Co. v. Wallace, 23 Ga. App. 554 (99 S. E. 57). Compatible with this rule is another; that where railroad employees in charge of an engine know that the general public is accustomed to cross the railroad tracks and are under the duty to anticipate the presence of people there, they must exercise ordinary care to avoid injury to pedestrians who pass over the tracks at the customary place. Wise v. Atlanta & West Point R. Co., 16 Ga. App. 372 (1) (6 S. E. 2d 135); Western & Atlantic R. v. Michael, 44 Ga. App. 503 (162 S. E. 294); Southern Ry. Co. v. Tudor, 46 Ga. App. 563 (7, 10,13) (168 S. E. 98).
The latter rule rests on the principle that knowledge of the presence of persons at such usual place of crossing is imputable to the trainmen, because they being aware that people generally may be expected at such point of passing is tantamount to knowing that they are there at a given time when the train approaches.
In this case the engineer testified that he permitted the engine to round the curve about one hundred feet from the pathway upon which he was, under the holding on the former appearance of the case here, under the duty to anticipate the presence of members of the public including the deceased, at a speed of thirty to thirty-five miles per hour, though he was at the time aware that he could not, by use of the equipment at his disposal and at the speed the train was traveling, or even at the much less speed of ten miles per hour, bring the engine to a stop short of the pathway so as to avoid injury to persons passing across the tracks. Wilson v. Pollard, 62 Ga. App. 781
, 785 (10 S. E. 2d 407). In Central of Ga. Ry. Co. v. Sharpe, 83 Ga. App. 12
, 21 (62 S. E. 2d 427) this court held: "Although the cases we have reviewed and cited herein are by no means all of the decisions which have dealt with the problem here presented, for the writing on this particular branch of the law is voluminous, nevertheless it is plain from what has been said that both counts of the petition in this case set forth a cause of action. Whether the deceased was a trespasser, licensee, or invitee, he was at a place where the railroad had, under the facts alleged, impliedly invited him to cross the tracks, and at a place where the servants of the company, considering the fact that the locality was a populous one within the limits of all incorporated town, and considering the frequency of the use of the crossing, were under a duty to anticipate that someone might be upon the tracks. Under such circumstances a jury might be authorized to find that operating the train at a speed of 70 miles per hour amounted to a failure to exercise ordinary care for the safety of those who the servants were bound to anticipate might be upon the crossing. Under these circumstances it is immaterial that the servants, under the allegations of the petition, did not see the deceased until they were just 300 feet from him and that, traveling at 70 miles per hour, they had less than three seconds in which to slow or stop the train or to give the deceased a warning of their approach. On the contrary, such facts are a circumstance which tends to show that the defendant's servants failed to use ordinary care in anticipating that someone might be on the track at that point, and for these reasons the trial judge did not err in overruling the general demurrer."
This admission of the engineer, without more, authorized a finding that he did not exercise ordinary prudence in the operation of the engine, and as held under similar circumstances in Georgia Southern & Fla. Ry. Co. v. Wilson, 93 Ga. App. 94
, 111 (91 S. E. 2d 71) was sufficient evidence of negligence on his part. Here it must be observed that one who operates a locomotive engine or drives a motor vehicle at such speed that he cannot bring the same to a stop within the distance dictated by the voice of ordinary care does not have immediate or proper control of the conveyance whatever be its nature. Brewer v. James, 76 Ga. App. 447
, 452 (46 S. E. 2d 267). The engineer testified that upon approaching a crossing some 300 yards distant from the place where the deceased was killed he sounded the horn of the locomotive. He did not profess to remember whether he rang the engine's bell or even whether it was equipped with a bell. A plaintiff's witness seated in an automobile at a point between the crossing at which the engineer stated the horn was sounded and the pathway where the plaintiff contends the deceased was killed, stated that he did not hear the engine's horn blow or its bell ring and that he could have heard either signal had it been given. The engineer's testimony on this issue was positive, the plaintiff's witness negative. The rule is well established that a jury may accept and believe negative evidence in preference to positive. Cliner v. Southern Ry. Co., 43 Ga. App. 650
(159 S. E. 782); Callaway v. Cox, 74 Ga. App. 555
(1b) (40 S. E. 2d 578). While the words "positive evidence" were used in the opinion its pronouncement of the law was sound. We are aware and have considered the facts that the plaintiff's witness admitted that he was engaged in conversation with another officer in which his interest might have been engrossed. But the witness still protested that, had the horn sounded or the bell rung, he would have heard the same. The weight and probative value of his testimony should have been left to the jury. In Ellis v. Southern Ry. Co., 89 Ga. App. 407
, 415 (79 S. E. 2d 541), it was held: "The evidence in this respect showed among other things that a person who was only a few hundred feet away from the scene of the homicide did not hear the ringing of any bell or the blowing of any whistle until after the train struck Mr. Ellis. This would be some evidence that the bell was not being rung, and the evidence was otherwise such as to make a jury issue as to whether the circumstances required it to be rung in the exercise of ordinary care in the operation of the train." Georgia Southern & Fla. Ry. Co. v. Wilson, 93 Ga. App. 94
, 112, supra.
The evidence as a whole showed that the defendant's servant in charge of its engine failed to exercise ordinary care in the particulars discussed, which were alleged in the petition as some of the acts of negligence on which the plaintiff's right of recovery was predicated.
The defendant contends that the plaintiff offered no proof of the allegation that the deceased was sitting on the railroad track when the train approached. In making this contention it was, of course, assumed that the testimony of Noble was properly excluded. In the first division of this opinion we have held that Noble's testimony was erroneously excluded, and hence it must be considered in passing on the sufficiency of the plaintiff's proof. Richardson v. Milikin, 204 Ga. 885 (3) (52 S. E. 2d 451). According to the version of the fireman as related by Noble the deceased was sitting on the tracks and, as the train approached, attempted to arise. This was in direct conflict with the testimony of the engineer that the deceased was lying on the roadbed with his head on one of the rails. In determining whether the evidence supported the theory that the deceased suffered a mental lapse or physical collapse so that he could not have been held to have assumed a sitting or reclining position on the tracks, it is as pointed out on the previous appearance of the case not important whether the deceased was sitting or lying on the roadbed. But as will presently appear from the discussion of another phase of the evidence the deceased's posture when struck by the train was of some consequence. The evidence being in conflict made an issue for the jury as to whether the deceased was reclining or sitting on the tracks as the train approached and came upon him.
(b) We next consider the question as to whether the plaintiff's evidence entirely failed to prima facie prove the allegation that the deceased was on the pathway when the engine struck him. On the former appearance of the case we decided that the evidence adduced by the plaintiff, substantially the same as upon the trial we now review, was sufficient to prove prima facie every material allegation of the petition. Ellis v. Southern Ry. Co., 89 Ga. App. 407
, supra. The defendant insists that the presence of the deceased on the pathway as alleged was a material averment. It is obvious that the previous decision is the law of the case as to this issue. But if this was not true another case on facts similar and in principle identical with the case at bar has been decided. Georgia Southern & Fla. Ry. Co. v. Wilson, 93 Ga. App. 94
Distinguished counsel for the defendant calls attention to the fact that on the former appearance of the case it was held that the plaintiff's proof was aided by the presumption arising under Code 94-1108 and invokes the rule that when the railroad company introduces evidence that its employees were not negligent in the operation of the train the presumption disappears. The rule is only applicable when the defendant's testimony shows that the trainmen were not guilty of any of the acts of negligence alleged in the petition and relied on by the plaintiff as the basis of recovery. Georgia Southern & Fla. Ry. Co. v. Wilson, 93 Ga. App. 94
, supra; Atlantic Coast Line R. Co. v. Thomas, 83 Ga. App. 477
, 483 (64 S. E. 2d 301). The testimony of the engineer tended to support rather than disprove that under the circumstances related by him he operated the train at a speed greater than he should have in the exercise of ordinary care. This was one of the acts of negligence alleged in the petition. This is true though the speed testified to by him was not as high as that alleged in the petition.
There were issues of fact that should have been submitted to the jury, hence the trial court erred in directing the verdict.
ON MOTION TO REHEAR.
QUILLIAN, J. The majority opinion in this case holds that it was reversible error for the trial court to exclude the testimony of the witness J. D. Noble as to what the fireman of the train crew told him with reference to the position on the railroad of the deceased, just prior to the train hitting him, for two reasons: First: It was a part of the res gestae. Secondly: It was a declaration made dum fervet opus and admissible to explain the conduct of the train crew, including that of the engineer.
While it is true that the witness Noble was not at the exact spot on the railroad track when the tragedy occurred, he was however, in close proximity thereto, and as contradistinguished from the cases of Weinkle & Sons v. Brunswick & Western R. Co., 107 Ga. 367
(33 S. E. 471) and Henderson v. State, 210 Ga. 680
, 683 (82 S. E. 2d 638), cited by counsel for the plaintiff in error as authority for excluding the testimony as not part of the res gestae, he arrived on the scene within three to five minutes after the deceased was struck by the train and while the conductor and fireman were in the process of making an investigation to determine what exactly had happened. Such time had not elapsed when Noble arrived on the scene for the fireman to have fully realized the consequences resulting to the company for the killing of the deceased, nor as to render the occurrence which was the subject of the conversation a completed and remote transaction of the past. The statement made by the fireman was not such declaration accompanying the act of killing the deceased as to render it a simultaneous exclamation; it was nevertheless sufficiently close in point of time as to make it a part of the res gestae, and as such admissible in evidence in this case.
The statement of the fireman: "I saw the man sitting on the track in the slumped over position and the man heard the train and turned and looked and it was too late; he made an effort to move, he heard the train coming and started to get up--looked." While this statement is clearly hearsay it was nevertheless admissible to show location of the deceased upon the track prior to the fatal injury of the deceased. This evidence was also sufficient, as was held when this case was here before, to authorize the inference that the deceased had suffered some kind of physical or mental collapse in assuming such posture on the track as described by the fireman. This evidence also "served to explain the conduct of the engineer and fireman who were in charge of the engine on the occasion under investigation, being illustrative of the issues as to whether the speed of the train, the failure to ring the bell, to have the train under proper control and to exercise ordinary care to anticipate the presence of the deceased at the locus of the collision was the proximate cause of his death."
Perhaps it is well to observe that the very elements of proof that bring the testimony of Noble within the res gestae rule are absent in the case of Weinkle & Sons v. Brunswick & Western R. Co., 107 Ga. 367, supra. In the case at bar the conversation occurred within three to five minutes after the deceased was killed and while an investigation was being conducted by the witness, a policeman. In the Weinkle & Sons case (pp. 370, 371), it is said: "Unless the declarations of the engineer were made while he was engaged in the transaction of some business of the company with the person with whom he was talking within the scope of his authority, or were declarations accompanying an act done by him in discharge of some duty imposed upon him in his relation as a servant of the company, the evidence was inadmissible and should have been rejected. It is not pretended that the statements made by the engineer were made in the course of any transaction with the witness in relation to the company's business, and therefore such statements do not come within the reason of that rule which permits the declarations of an agent to be introduced against his principal when they are made dum fervet opus. Were the statements of the engineer a part of the res gestae of the occurrence so as to make them admissible for that reason? It does not distinctly appear in the record what was the lapse of time between the killing of the mules and the conversation between the engineer and the witness; but from what does appear it must have been such a lapse of time as that the declarations were not, in any sense, contemporaneous with the act of killing the mules. The witness was not present at the time that the collision occurred, and it is to be inferred from what is stated in the motion for a net trial that when the witness arrived upon the scene such time had elapsed that the engineer was in a position to fully realize the consequences resulting to the company from the killing of the mules, and that therefore the occurrence which was the subject of the conversation was in the past."
In Kemp v. Central of Ga. Ry. Co., 122 Ga. 559 (50 S. E. 465) the record does not disclose that the self-serving statement of the engineer, which a witness undertook to repeat, was made near the time of the occurrence to which the engineer's statement referred, that it was made during an investigation or under any circumstances that would bring it within any exception to the hearsay rule. The case is not authority for anything contrary to the rule laid down in the original opinion.
Moreover, the ruling made on the previous appearance of this case that there was sufficient competent evidence in the record to take the case to the jury was an adjudication that the statement made by the defendant's fireman, testified to by J. D. Noble, was of probative value. Had the testimony as to his statement been hearsay and not admissible under any exception to the hearsay rule it would have had no probative value, even when admitted without objection. The ruling then made reversing the trial court's grant of a nonsuit is conclusive that the statement made by the fireman and sworn to by Noble was not mere hearsay evidence. The former ruling is the law of this case.
FELTON, C. J., concurring specially. 1. I think the court erred in ruling that the testimony of J. D. Noble as to what the fireman told the witness that he saw was admissible in evidence, the question dealt with in division one of the opinion. The court seems to have based its ruling on the fact that the statement was part of the res gestae and also on the theory that it was hearsay but admissible to explain conduct and ascertain motive, etc. Under the first theory the testimony was properly excluded under Weinkle & Sons v. Brunswick & Western R. Co., 107 Ga. 367
(33 S. E. 471), and Kemp v. Central of Ga. Ry. Co., 122 Ga. 559
(50 S. E. 465). The testimony was not admissible under the second theory because the statement by the fireman did not explain the conduct or illustrate the motive of the engineer under the facts of this case, as it is not shown that the fireman communicated what he saw to the engineer. See Henderson v. State, 210 Ga. 680
, 683 (82 S. E. 2d 638). The evidence was not admissible to show the substantive fact that the deceased was sitting on the tracks with his head in his hands. Hix-Green Co. v. Dowis, 79 Ga. App. 412
(53 S. E. 2d 601).
2. On the former appeal of this case this court held that, "The evidence in this case tended to show and would have authorized the jury to find that the plaintiff's husband suffered some mental or physical collapse which caused him to sit or lie upon the defendant's tracks." On the trial treated in that decision there was no objection to the testimony as to what the fireman said, dealt with above, or if objected to on the trial the objection was waived by a failure to file a cross-bill of exceptions. So, considering the above holding, even if the testimony of J. D. Noble was inadmissible, there would still be a jury issue whether the deceased's negligence in lying on the track precludes a recovery.
3. I do not think that the fact that this court assumed that the testimony of J. D. Noble was admissible in view of the fact that no objection to it was presented to us made it the law of the case that the evidence was admissible. I do not think that the principle of the "law of the case" goes that far, especially since the evidence involved is not indisputably hearsay as is shown by the ruling of the majority in this case. Of course, if this court had ruled expressly that the evidence was not hearsay, we could not now change that ruling.
I think that under our ruling in the former consideration of this case the court erred in directing a verdict for the railroad but I think the court properly excluded the testimony of J. D. Noble as to what the fireman stated to him.