Mayor of Baltimore v. Lobe

Page, J., delivered the opinion of the Court. This suit was brought by the appellee to recover damages for injuries to him while driving along Wolfe street, near Pratt, in the City of Baltimore, caused, it is alleged, by the negligence of the City in not maintaining that street in proper repair. At the point where the accident occurred, the street had been dug up for the purpose of laying water mains, and it is charged that the trench made, though filled to the surface, had not been properly repaired, so that when the plaintiff attempted to drive over it, his horse sank in the soft earth, and becoming frightened, ran away. The ³¹² plaintiff was thrown from the vehicle and injured at or near the place where the horse started, but his servant, one Anderson, who was with him, remained in' the carriage until “ the horse reached the block below where the buggy over-turned,” and he was thrown out.

After the plaintiff was thrown from the carriage, the horse turned into Pratt street. So that the point where the servant Anderson came to the pavement was on that street a “ block below ” Wolfe. Both Lobe and Anderson, then went or were taken to Baker’s drug store, “ on the block below the scene of. the accident.” Officer Gordon at the time of the accident was on the northwest corner of Lombard and Wolfe streets. He testifies that “ a party came to him and informed him there was an accident on Pratt street, that he immediately went there and seen a crowd in front of Baker’s drug store, and that he went in and Mr. Lobe was sitting in a chair and Mr. Baker was fixing his head up, bandaging it up.” The officer further testified that he saw the young man Anderson with Mr. Lobe, and asked the former how it happened.

On objection being then interposed, the Court asked the counsel for the City, if he wanted “to contradict any statement of the young man.” The counsel, then stated that it was not offered for the purpose of “ contradicting ” the witness, but as “ part of the case,” as “ part of the res gestee.” The Court allowed the witness to state that the young man had made “ admissions ” to him as to how the accident occurred, but declined to permit the officer to give what the young man said. This is the basis of the defendant’s first exception. It is claimed the Court committed error in so ruling, because the statement of the young man to the officer as to how the accident occurred, was made so near to the time of the happening, and sprang so spontaneously out of the incident itself that any idea of deliberate design in making it was impossible; and that therefore it was admissible, as being contemporaneous with the main fact, and a part of the res gestee. This Court has more than once stated the ³¹³ rule applicable to a case of this kind.

Handy v. Johnson, 5 Md. 450 ; Dietrich v. The Hall Springs Ry. Co., 58 Md. 347 ; Franklin Bank v. Steam Nav. Co., 11 G. & J. 28 . The latest case where the Court has had occasion to further consider the matter is that of Wright v. The State, 88 Md. 706 .

It would be profitless to examine separately all these cases, as well as the cases from other Courts. They do not substantially differ in their statements of the rule. All agree that to make the declaration a part of the res gestee it must be so connected with the transaction as to be reasonably a part of it; it must not be the result of premeditation or design, but the “immediate spur” of the transaction; and though it need not appear that it was spoken at the identical point of time when the principal fact happened, yet it must have been made so soon thereafter as fairly to be a part of the transaction, and therefore elucidating and explaining it. But if the declaration was made after the main bccurrence had