
    Fanny Brauer, as Administratrix, etc., of Paul Frederick Brauer, Deceased, Respondent, v. New York City Interborough Railway Company, Appellant.
    First Department,
    April 8, 1909.
    Evidence — res gestae — declarations of motorman after accident.
    In an action against a street surface railwaj' company to recover for tlie death of a person who was struck by a car while driving oil the tracks, it is error to admit evidence of a declaration made by the motorman a few seconds after the collision stating that “ He (the decedent) bothered me all across the bridge,” where it appears that the car had passed over the bridge and followed the vehicle to within a few hundred feet of the accident. This, because the declaration was not properly part of the ? es gestas but was merely descriptive of a past event. Patterson, P. J., dissented.
    Appeal by the defendant, the New York City Interborough Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of April, 1908, upon the verdict of a jury for $25,000, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.
    
      Lemuel E. Quigg [Bayard, H. Ames and John Montgomery with him on the brief], for the appellant.
    
      Joseph Beihilf, for the respondent.
   Laughlin, J.:

This is a statutory action to recover for the death of Paul Frederick Brauer, which was.caused by a collision between one of the defendant’s street cars going northerly on Aqueduct avenue, in the vicinity of Featherbed lane, in the borough of the Bronx, at about seven-thirty o’clock in the evening on the 3d day of December, 1906, and a wagon in which the decedent was riding. It was a dark night. Decedent was traveling in the same general direction that the car was going, and he was carrying no light on his wagon, as required by ordinance of the city. At the time of the collision the decedent was either traveling along the track or was crossing it diagonally. The car was going very fast, but it had the usual headlight and lights in the interior. The decedent was killed instantly. The questions of freedom from negligence on the part of the decedent and of negligence on the part of the defendant were close questions of fact on the evidence adduced upon the trial. An item of evidence bearing upon these questions of fact was received, over objection.and exception duly interposed and taken by the defendant, which we think requires a reversal. The court received, upon the ground that it was admissible as part of the res gestae, evidence of a declaration made by .the motorman within a few seconds after the collision. A passenger who was seated within the car arose on hearing the motorman sound the gong just before the collision occurred, and stepped to and opened the front door, and was permitted to testify, over objection and exception of the defendant, that either within four or five seconds after the collision occurred or after the body of the decedent was removed from under the car — the witness haying testified both ways on that point — he heard the motorman say : He bothered me all across the bridge.” In any view of the testimony of the witness, the collision had taken place before he heard the motorman make this statement, and, therefore, it was a declaration relating to a past event. The statement of the motorman was not made in answer to a question by anybody, and it does not appear that any one save the passenger was in sight or within hearing distance. It appeared from other evidence in the case that the car had passed over a bridge within a few hundred feet of the scene of the accident; and there was evidence tending to show that a wagon was on the track ahead of the car at that point and that the wagon in which the decedent was riding was seen upon the track ahead of the car shortly before the collision and seen to turn off the track, and the inference from some of the evidence vjould be that the driver turned onto the track again. The statement of the motorman was necessarily quite damaging to the defendant. The inference that would likely be drawn from it is that the motorman felt that the decedent deserved to have the wagon in which he was riding bumped by the car on account of what had occurred before, and his statement might convey the impression that he purposely propelled his car against the wagon maliciously or in a spirit of revenge. The only theory upon which the learned counsel for the respondent seeks to sustain the admissibility of this evidence is that it was an involuntary, spontaneous exclamation under the ruling in the case of People v. Del Vermo (192 N. Y. 470) and kindred cases. In order to sustain the admissibility of the evidence upon that ground, however, it is essential that the exclamation should characterize the accident and shed light upon how it happened. This exclamation does not fall within that category. It shows what happened before and is strictly a narrative of a past event, but does not characterize the accident itself or show how the collision occurred. In the circumstances, the error, in the reception of this evidence cannot be overlooked, for it cannot be affirmed that it was not prejudicial to the defendant.

It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Ingraham, McLaughlin and Scott, JJ., concurred ; Patterson, P. J., dissented.

Judgment and order reversed, new trial ordered, costs to appellant to abide the event.  