the time of the collision, assumes that Mrs. | there was exposed to her sight persons inRoller "was asleep," whereas her testimony jured in said collision." was that she "had not gotten asleep yet," when she was awakened with a terrible bump, etc. What influence could such a trifling discrepancy possibly have in controlling the answers of the physicians or the judgment of the jurors? None whatever. What difference did it make whether she was at the time dozing, sound asleep, or fully awake?

Dr. Roller, in testifying upon the point under review, said: "We had a head to head collision. We were thrown forward in our berths. We had one concussion, and immediately after that we had another." Peter Weidner testified: "We had a col-swer of expert witnesses to hypothetical lision. I could not just tell what it was at the time it happened, but I found we had stopped very suddenly, and then drew back and had another concussion, and shook us up pretty well. Immediately after the collision there was a heavy explosion."

ficer or agent of the plaintiff in error as to how the accident occurred, upon which it was sought to hold the railroad company liable, nor to a narration of past events, upon which points counsel have industriously cited a vast number of authorities, but re

this testimony was incompetent, irrelevant, and immaterial; that it did not tend to prove any of the issues raised by the pleadings; that it was not part of the res gesta and too remote. It is contended, among other things, that, inasmuch as Mrs. Roller did not testify to having been frightened or in-lated almost exclusively to the facts which jured by anything she there saw or heard, actually transpired at the time; the same beit was error to allow any testimony as to ing a part of, and directly connected with, what there occurred. The truth is that the collision and wreck. How could the there was no direct evidence that she was jury arrive at the truth without taking the frightened at the time of the collision, either facts into consideration, with all the surwhile in her berth in the sleeper, at the sight rounding circumstances of the collision inof the conflagration or the sound of the ex- cident thereto and connected therewith? plosion, or at what she saw and heard after The defendants in error had the right, alshe left the car. Whether she received any though the seriousness of the collision was fright or shock to her system was a matter not denied, to have the actual condition of of inference to be drawn by the jury from all affairs photographed by the sworn testimony the established facts, as well as from the of all the witnesses; and here we may apopinion of the medical experts. The jury propriately digress, and, answering another were not bound to accept such opinion un assignment of error, add that it was not erless they believed it was supported by the ror, in addition thereto, to have the wreck, facts. The shock, if any, to her system, may with all its surroundings, photographed by have, for aught that appears from the testi- an artist, and, upon proof of their correctmony been solely from the effects of the ter-ness, submit them to the jury. These photorible bump she received while in her berth, graphs (three in number) fully illustrate or from some other cause, or by all com- the facts as testified to by the witnesses. bined. The reasons given, why the testi- Everything except the explosion and loud demony as to what occurred on the embank-tonations is presented and truthfully delinment should have been excluded, would apply with equal force against any testimony as to the explosion, conflagration, or general wreckage; and, there being no positive testimony that she was frightened by the injuries she actually received while in her berth, it would appear that evidence as to that injury, to show a fright to her, would likewise, under the views contended for by counsel, be objectionable. But the reasoning of counsel is unsound. To enable the jury to determine the reasonableness of the question whether Mrs. Roller was frightened or received a shock from the collision, all the facts and circumstances connected therewith were admissible, because, in the very nature of the case, they were not divisible. Mrs. Rolier was not guilty of contributory negligence in failing to close her ears and shut her eyes as to everything that transpired, resulting from the collision. She had the right to observe what was going on, to use her faculties of sight and hearing, and to exercise the ordinary speed of locomotion in seeking a place of safety, and in so doing to act at the time upon the facts as they appeared to her, regardless of the question as to whether her injuries would have been as great had she remained in the car, and taken time to fully dress before she departed therefrom. Purcell v. St. Paul City R. Co. 48 Minn. 134, 138, 16 L. R. A. 203, 50 N. W. 1034; Twomley v. Central Park, N. & E. River R. Co. 69 N. Y. 158, 160, 25 Am. Rep. 162; Kleiber v. People's R. Co. 107 Mo. 240, 247, 14 L. R. A. 613, 17 S. W. 946; St. Louis & S. F. R. Co. v. Murray, 55 Ark. 248, 258, 16 L. R. A. 787, 18 S. W. 50: Stokes v. Sal- In West Chicago Street R. Co. v. Kennelly, tonstall, 13 Pet. 181, 191. 10 L. ed. 115, 121. 170 Ill. 508, 510, 48 N. E. 996, the court It will be observed from the record that the said: "The question before the jury was testimony of the witnesses as to what they how or in what manner the plaintiff was insaw and heard while upon the embankment jured, but we think it was competent, as a did not relate to any declarations of any of-part of the res gesta, to show all that oc

eated. The admission of such photographs
is always allowed, when proven to be correct,
for the purpose of enabling the witnesses to
explain their testimony as to the facts, or
to assist the jury in arriving at a better
understanding of the testimony of the wit-
nesses. 1 Wharton, Ev. § 676; 1 Wharton,
Crim. Ev. § 544; People v. Durrant, 116 Cal.
179, 212, 48 Pac. 75; 11 Am. & Eng. Enc.
Law, 2d ed. 539, and authorities there cited.
Returning from this digression, we are of
opinion that the area of events covered by
the term "res gesta" depends upon the cir-
cumstances of each particular case.
No gen-
eral definition applicable to all cases could
be fully and fairly given within the limit
of an ordinary opinion. The centralized
thought is that the term presupposes a main
fact or a principal transaction, and the "res
gesta" means the circumstances and facts
which grow out of the main fact, are con-
temporaneous with it, and serve to illustrate
its character. Applying the term to the
present case, with reference to the main col-
lision as the principal fact, it necessarily
follows that the immediate and surrounding
circumstances interblended with and directly
resulting therefrom are to be considered as
a part of the accident and injury, and in-
separably connected with it. 1 Wharton,
Ev. § 259; 1 Greenl. Ev. § 108: Carter v.
Buchannon, 3 Ga. 513, 517; Hallahın v.
New York, L. E. & W. R. Co. 102 N. Y. 194,
199, 6 N. E. 287; West Chicago Street R. Co.
v. Kennelly, 170 Ill. 508. 510, 48 N. E. 996;
Travellers' Ins. Co. v. Mosley, 8 Wall. 397,
408, 19 L. ed. 437, 441.

curred, although in doing so it might appear | therefrom. This being true, it must follow that others were also injured. The injuries to others were a part and parcel of the same injury received by the plaintiff, and in describing the manner in which she was injured, the injuries received by the others be ing so closely connected, it would be almost impossible in an intelligent manner to give an account of one injury without at the same time disclosing the others."

In Chicago, St. L. & P. R. Co. v. Spilker, 134 Ind. 380, 393, 411, 33 N. E. 280, 34 N. E. 218, the appellee received injuries in a collision which occurred at a railroad crossing between the train of appellant and a wagon in which Mrs. Spilker, her husband, David Casey, and others were seated. Certain evidence was objected to because it assumed that Casey was killed by the same collision, and it was argued in support of this objec tion that this allusion to Casey's death was calculated to prejudice the jury in favor of the appellee. The undisputed fact was that Casey was killed at the time the wagon was demolished by the collision. Upon these facts the court said: "His death was the principal circumstance connected with the accident, and we do not see how it was possible, even if proper, to keep the knowledge of this circumstance from the jury. One might almost as well object to making any remark concerning the demolition of the wagon. David Casey's death is mentioned by several of the witnesses; it was inseparably connected with the accident, and a reference to him and his death could hardly be avoided. But it was not necessary to avoid it."

error

that if, alarmed by the peril in which she was placed by the collision, but acting as a person of ordinary prudence would under like circumstances, she jumped from the car into a deep trench, and, in order to reach a place of safety, climbed up a steep embank+ ment, and there saw the horrors incident to such a collision, and the fright or shock to her system, added to the injuries to her body, impaired her health, and was directly traceable to the collision, as its primary, proximate, and responsible cause, the damages resulting therefrom would be general, not special, and therefore need not have been specifically set forth in the complaint, because, in the eye of the law, there would not be any new or independent cause between the collision and the injuries. The obvious, probable, or natural effects of the injuries which Mrs. Roller received might be given in evidence under the general allegations of the complaint. It is only those damages which are not the probable or necessary result of the injury that are required to be specially alleged. The defendants in were not required to set forth in their complaint all the physical injuries and mental sufferings which Mrs. Roller sustained, or which might have resulted from or been aggravated by the negligent acts of the plaintiff in error; nor were they required to aver each and every specific act and thing which occurred at the time of the collision which might or did contribute to her injuries. If such injuries and such acts could reasonably be traced to the main act complained of, and are such as might and did naturally follow With reference to the objection that the from the collision, and were incident thereto, details of the collision, as given by the wit- they need not be specially averred. The nesses, while upon the embankment, were claim made, that the plaintiff in error was not put in issue by the pleadings, but little not advised by any of the allegations in the need be added to what we have already said complaint that any damages were or would in discussing other questions. The complaint be claimed for any injury, fright, or shock alleged that: "Katherine A. Roller was by which occurred after she left the car, cansaid collision, while she was in said passen- not be sustained. When the plaintiff in erger coach as aforesaid, violently and forcibly ror was informed by the pleading generally thrown down and against the sides, berths, as to the effects produced by the collision, it seats, and partitions of such coach, and was was bound to anticipate evidence as to the in the night-time, and at the place of said extent of her injuries, the origin or aggracollision, forced to alight from said passen-vation of which could be reasonably_traced ger coach, and was by means of the premises greatly bruised, wounded, and injured, and also, by means of the premises, she became and was sick, sore, lame, and disordered, and so remained and continued for a long space of time, to wit, from thence hitherto, during all of which time the said plaintiff suffered and underwent great bodily pain and mental anguish, and was for a long period confined to her bed and was hindered and wholly unable to attend to the performance and transaction of her necessary duties and affairs, during all that time to be performed and transacted: and also, by means of the premises, the said plaintiff has been and will be permanently injured."

Under these allegations it was certainly competent, as we have before stated, to show any injury to her health which was the natural, probable, and reasonable result of the collision, and of her bodily injury received

to the negligent act complained of. Ehrgott v. New York, 96 N. Y. 265, 277, 48 Am. Rep. 622; Chicago v. McLean, 133 Ill. 149, 153, 8 L. R. A. 765, 24 N. E. 527; Montgomery v. Lansing City Electric R. Co. 103 Mich. 47, 57, 29 L. R. A. 287. 61 N. W. 543; Snyder v. Albion, 113 Mich. 275, 71 N. W. 475; Croco v. Oregon Short Line R. Co. 18 Utah, 311, 44 L. R. A. 285, 54 Pac. 985; Ohio & M. R. Co. v. Hecht, 115 Ind. 444, 17 N. E. 297; Denver & R. G. R. Co. v. Harris, 122 U. S. 597, 608, 30 L. ed. 1146, 1148, 7 Sup. Ct. Rep. 1286; Wade v. Leroy, 20 How. 34. 44, 15 L. ed. 813, 815; 5 Enc. Pl. & Pr. 746, 748, and authorities there cited.

In Smith v. St. Paul, M. & M. R. Co. 30 Minn. 169, 171, 14 N. W. 797, where the injuries to the plaintiff were received from a derailment of the cars of the defendant company, the facts were in some respects similar to the facts in the present case. The com

.

plaint did not allege anything about any- | ited view of the case cannot be sustained. fright, and did not specify any more of the The instructions asked, covering the meas details of the injury than is set forth in the ure of damages that could or could not be recomplaint in this action. The court, with covered, may, for the purpose of this opin reference thereto, said: "In the circum-ion, be conceded to be correct and applicable stances mentioned, the damages resulting di- to this case. The objections urged to their rectly and proximately to the person and exclusion are based upon the criticism of health of plaintiff from her fright counsel directed to the charge of the court,and from her coming to the ground, whether that it was not full, did not contain the necby jumping or by any of the means before in- essary limitations and qualifications, and of dicated, would be general, not special. itself did not cover the different views that General damages are such as the law implies might properly be taken of the case. Our or presumes to have accrued from the wrong examination of the charge has failed to concomplained of.' 1 Chitty, Pl. 16th Am. ed. vince us of the soundness of these objections. 515. They are frequently spoken of as nec- In drafting or orally giving a charge to a essarily resulting from the wrong. 1 Chitty, jury, terseness, accuracy of statement, clearPl. 16th Am. ed. 439, 515, 516; 2 Greenl. Ev. ness of expression, and care in covering all $ 254. This, however, does not mean (as de- essential particulars are commendable qualfendant's counsel appears to argue) that gen-ities. They furnish safe guides for all nisi eral damages are such only as must, a priori, inevitably and always result from a given wrong. It is enough if, in the particular in stance, they do in fact result from the wrong, directly and proximately, and with out reference to the special character, condition, or circumstances of the person wronged. The law, then, as a matter of course, implies or presumes them as the effect which in the particular instance necessarily results from the wrong."

prius judges to follow. But absolute perfection is not required. It would indeed be difficult, if not impossible, to so frame a charge as to prevent criticism by the eagle eye of vigilant and learned counsel, or even of the appellate court, with the opportunity afforded it of mature and deliberate consideration. Substantial accuracy of the legal principles is all that the law requires. If the charge of the court in its entirety fairly covers the legal propositions necessary to 7. Finally, it is claimed that the court give instructions upon, and is substantially erred in refusing to give forty instructions correct, it is not erroneous for the court to asked by the plaintiff in error. In Citizens' refuse the instructions prepared by counsel, Gaslight & Heating Co. v. O'Brien, 19 111. although they contain correct principles of App. 231, 234, the court said: "To launch law applicable to the case. This, in subsuch a mass of legal conundrums upon a stance, has been so often declared, especially court, which can never enlighten the jury, by the national courts, as to render it unbut are generally drawn with the real, if not necessary to cite authorities in its support. avowed, purpose of getting error into the We cannot, however, refrain from quoting record, and entangling the court in some with approval what is said upon this subject technical contradiction that may be used in in 11 Enc. Pl. & Pr. 288: "Instructions on a higher court, is a perversion of the law of points which have been sufficiently covered instructing jurors. A few plain statements by other instructions may properly be reof the law governing the case would suffice. fused, although they are correctly drawn and If the court in the hurry of trial did not applicable to the evidence. This is so whethsift this unreasonable number of instruc-er the instruction requested is covered by tions as carefully as appellant desired, we do not feel called upon to interfere, unless some palpable error has occurred, clearly affecting the justice of the case."

were

Specific exceptions were taken to each instruction refused. Several of them, relating to the duties and obligations of railroad conpanies to their passengers, were evidently prepared upon the theory that, because the Midland Company was alone to blame, the plaintiff in error was not guilty of any neg ligence, and could not be held liable. These were inapplicable to the facts in this case, and were properly refused. Some drawn upon the theory that the jury had no right to consider anything that occurred after Mrs. Roller left the car. These have been sufficiently disposed of by the views expressed with reference to the admission of the testimony. Others assert the broad principle that Mrs. Roller ought to have remained in the car, or at least should have avoided the sights upon the embankment. by returning to the car or going elsewhere, where the effects of the wreck would not have been observed. Such a narrow and lim

the general charge, or by special instructions granted at the request of either party, or whether the mode of expression is the same or different. The duty of the court is fully discharged if the instructions embrace all the points of the law arising in the case, in the court's own language. Indeed, the prac tice of taking the instructions requested, and formulating a general charge to the jury, embracing all the matters of law arising upon the pleadings and the evidence, has been specially commended. In this way the law is sufficiently declared and clearly presented to the jury, without the unnecessary repetition and verbose language which so often mar special instructions, whereby jurors are confused and confounded, rather than instructed and directed. Of course, such action requires great labor, thought, and prudence on the part of the trial judge, in order that the substance of all special instructions shall be given to the jury when the questions therein presented are pertinent to the case, and that no omission shall occur by which either of the parties may be prejudiced. But, if the trial judge is willing to under

UNITED STATES CIRCUIT COURT OF APPEALS, SEVENTH CIRCUIT.

Charles L. RUNDELL, Admr., etc., of Ed- | burg v. Rickards, 30 L. ed. 358, 7 Sup. Ct. win R. Rundell, Deceased, Appt.,

By the general maritime law as administered by the admiralty courts, no recovery can be had for a death by wrongfulV.