
    Ogden v. Pennsylvania Railroad Co.
    In an action by a father to recover damages for the death of a son, some ten years old, caused by the alleged negligence of a railroad company, the evidence was that the boy, when last seen before the accident, was walking down a street which was crossed by the railroad track. When next seen he was either falling or rolling under a ear near the end of a train then about a quarter of a square above the street crossing. There was evidence that the train was running at a high rate of speed and that no signals were given; but there was no evidence as to how the accident happened, or that it happened at the crossing, and there was evidence that the train could readily be seen at the crossing for some distance. Held that a nonsuit was properly entered.
    Per Curiam. — It is only a conjecture whether the boy was struck by the train or was injured in an attempt to get on the car. The latter seems highly probable. There being nothing to show that the injury occurred at a crossing, the speed of the train is not an essential element in the case.
    The declarations of the boy, half a minute after the accident, after he had been picked up and carried to the sidewalk, were held inadmissible as res gestee.
    
    Jan. 9, 1889.
    Error, No. 140, July T. 1887, to O. P. No. 4, Phila. Co., to review a judgment of compulsory nonsuit in an action for damages for death of plaintiff’s child, at March T. 1884,
    Plaintiff’s evidence was to the following effect:
    On Nov. 12, 1883, Charles Ogden, a boy about ten years of age, was seen walking down Front Street on his way to school at Second and Reed Streets, Reed Street being three squares below "Washington Avenue, along which run the tracks of defendant company. When next seen, Ogden was under the wheels of a car, which was the third or fourth car from the rear of the train, and which, at the time the boy was seen under it, was about a quarter of .a square above Front Street. There was no evidence to show how the accident occurred. The boy was picked up and carried away and died shortly afterward from the effects of his injuries. It appeared that, for some distance, the train could be seen approaching by any one standing at Front Street and Washington Avenue. There was no evidence that the accident happened at the crossing, or that the boy was attempting to cross the street at a crossing or at any other point. Plaintiff’s witnesses testified that the train was going at an unusually high rate of speed, and that there w'ere no gates or flagman and no signals by the passing train and that the neighborhood was thickly settled.
    The plaintiff testified that his son, in going to school, generally went down Front Street and out Reed; he had seen him go that way and such were the orders given him. He had been attending the school about a year. Another witness testified that the boy left his home a little before one o’clock, saying he was going to school. Another witness testified that, when next seen, the boy was tangled in the wheels, the front truck of the third or fourth car, that he was either falling or rolling, and that when he was picked up he was between the rails. The train was composed of a locomotive and tender of seven or nine box cars.
    O’Neill, a witness for plaintiff, testified that “the speed of the train attracted his attention, and that he turned around, and that as he turned around to look at it he saw the boy entangled in the wheels of the fourth car from the rear. The boy was entangled in the wheels of the front truck of the car; he had not yet got to the ground.”
    Gabell, a witness called on behalf of the plaintiff, related how, in company with two other men, he picked the boy up and carried him to the pavement, and further testified, inter alia, as follows :
    “ I asked him (the boy) if he was on the car, and he says ‘ No.’ He told me no, he was not on the cars.” This testimony was subsequently stricken out, on motion of counsel for defendant. ' [1]
    The same witness was further asked to state the boy’s reply when he asked him, half a minute after the accident occurred, the following question: “Were you riding on the cars?” Objected to; objection sustained, evidence excluded, and exception. [2]
    The witness was asked to state what the boy said in relation to the accident while they were in the wagon, about five minutes after the accident occurred. Objected to; objection sustained, and •exception. [3]
    The witness was further asked: “What did you say to him half a minute after you picked him up, or what question did you ■ask him half a minute after you picked him up ?” A. “ I asked him if he was on the car.” This question and the answer thereto were subsequently stricken out. [5]
    John O’Neill, another witness for plaintiff, was asked : “What •question did you ask. him (the boy) after you had him in the wagon .and the wagon started?” Objected to; objection sustained, and exception. [4]
    The court, on motion of defendant, entered a compulsory- non-•suit, which the court in banc subsequently refused to take off, in the following opinion by Arnold, J.:
    “There was no evidence of negligence on the part of the •defendant to submit to the jury. The injured boy was first seen at the third or fourth car from the rear end of a train of about ten •or twelve cars. He was then in front of No. 123 or 125 Washington Avenue, which was the twelfth or thirteenth house above Front Street; •or, as one of the witnesses said, it was about a quarter of a square •above Front Street. A flagman or a gate at that place was unnecessary ; the place for such guards is at the junction of the cross-streets. Whether the train ran into and over the boy, or whether the boy was trying to get upon the moving train and fell in front of the ■cars which ran over him, is a matter of conjecture. It is no more to be presumed that the whole train ran into and over him, than that the boy was trying to get on the car. He was found at a place where persons do not usually cross the street, and where the company was not bound to have a flagman. In such a case, there is no presumption against the defendant which requires it to exonerate itself; and, in such a case, the speed of the cars raises no presumption ■of neglect by the company. We think, therefore, that the judgment •of nonsuit was properly entered.
    “Upon the question of evidence, the offer to prove the conversations between the boy and the witnesses, after the boy had been carried from the railroad track to the sidewalk and on the way to the hospital, we are of opinion that the ruling excluding such evidence was correct. Such evidence cannot be received as dying declarations, which are confined to homicide cases. Railing v. Com., 16 W. N. C. 452. In a case in the former District Court of this •county, President Judge Hare .decided that dying declarations are not evidence in an action for negligence. Friedman v. R.R., J Phila. 203.
    “ It was .urged that such conversations should be admitted as ■part of the res gestae; and for this several eases were cited, which will be noticed hereafter. Declarations, to be admitted as part of the res gestae, must have been made at the time the acts were done. No limit of time is fixed during which the res gestae may continue. As soon, however, as the acts are done and ended, anything said thereafter is merely narrative of a past occurrence. 'It matters not how short the time after the acts may be, yet if the acts are done,, completed, and ended, the res gestae are completed and closed, and cannot afterward be enlarged or opened so as to take in subsequent, conversations. See Greenl. on Ev., 108 to 114, and notes. An example in some respects like the present case is Com. v. Harwood,. 4 Gray, 41, in which, on an indictment for keeping a bawdy-house, conversations held by men immediately upon coming out of the house and upon the sidewalk in front thereof,, were held inadmissible as part of the res gestae. In the case of an accident, conversations with the injured person at the place of the injury, while it is still occurring, or perhaps while trying to extricate him, will be-received as evidence. That is the effect of • Elkins v. McKean, 79 Pa. 493, in which the court held that ‘what McKean said as to-the cause of the accident, when found enveloped in the flames of the oil, or within a few minutes afterward, was clearly competent evidence as part of the res gestas.’ And the evidence received was a conversation with the deceased at the time when and place where he was being injured. No change whatever had been made. In Cattison v. Cattison, 22 Pa. 275, evidence of the condition and1 appearance of a maltreated wife, and what she said, and that she-claimed assistance, was received, for the reason that her departure and absence were to be regarded as one continuing act. In the case of the Hanover R. R. Co. v. Coyle, 55 Pa. 396, declarations, of the engineer, by whose negligence the plaintiff was injured, at the time of the injury, were admitted as part of the res gestas. The-court dwelt much on the fact that they were declarations against, interest; and this is really the principal ground for receiving the evidence, for it is doubtful if it would be admitted on behalf of the defendant. The same may be said of Mullan v. The Steamship Co., 78 Pa. 25, in which expressions by the defendant’s chief stevedore were held admissible on the question of the sufficiency of the appliances furnished by the defendant to its workmen. In the Supreme Court of the United States, in the case of the Vicksburg & Meridian R. R. Co. v. O’Brien, 119 U. S. 99, the question of the admissibility of the evidence of declarations by the engineer of a train which met with an accident, made from ten to thirty minutes after the occurrence had ended, was discussed, and resulted in a judgment against admitting the evidence, although four of the judges were in favor of admitting it, relying upon the Hanover R. R. Co. v. Coyle in support of their views. As Mr. Justice Harlan well says: ‘ If the contrary view should be maintained, it would follow that the declarations of the engineer, or other person, if favorable to the company, would have been admissible in its behalf as part of the res gestae without calling him as a witness — a proposition that will find no support in the law of evidence.’ Statements, made or acts done subsequently to an accident are not part of any res gestee, and it is erroneous to admit evidence of them. Penna. R. R. Co. v. Books, 57 Pa. 339. Upon all the authorities, we-believe tlie rule to be: that, if the acts are done and ended, and particularly if the injured person has been removed from the place of accident, the res gestae, the acts done, are completed, the transaction is closed, and cannot thereafter be opened to let in subsequent •conversations as evidence for either party; and it makes no difference whether the time which has elapsed is short or long.”
    
      The assignments of error specified the action of the court, 1, 5, in striking out the above.testimony, quoting the questions and .answers; 2, 3, 4, in refusing the questions, as above stated, quoting the substance of them but not giving the bill of exceptions; and, •6, in refusing to take off the non-suit.
    
      E. D. Wadsworth, Henry C. Terry and George H. Van Zandt, for plaintiffs in error.
    The declarations of the child were evidence as part of the res gestae. Elkins v. McKean, 79 Pa. 495; Tompkins v. Saltmarsh, 14 S. & R. 275; Deardorf v. Hildebrand, 2 Rawle, 225; Cattison v. Cattison, 22 Pa. 275; Hanover R. R. v. Coyle, 55 Pa. 396; V. & M. R. R. Co. v. O’Brien, 119 U. S. 99; Rawson v. Haigh, 2 Bing. 104; Smith v. Cramer, 1 Bing. N. C. 585; Taylor on Evidence, § 525; Ins. Co. v. Mosley, 8 Wall. 397; Rex v. Foster, 6 C. & P. 325.
    The law presumes that the boy exercised ordinary care; there was no evidence offered to rebut this presumption, and whether he ■did exercise such care or not should have been left to a jury. Pa. R. R. v. Miller, 6 W. N. C. 257; Pa. R. R. v. Weis, 6 W. N. C. 259; Schum v. Pa. R. R., 107 Pa. 8.
    
      George Tucker Bispham, for defendant in error.
    The boy’s narrative was inadmissible as a dying declaration. Railing v. Com., 110 Pa. 100; Friedman v. R. R., 7 Phila. 203.
    The declarations were not incident to the act, but were merely .a narrative of a past transaction. This, and not proximity of time, is the true test. The evidence was therefore inadmissible as part of the res gestae. 1 Wharton’s Evidence, § 259 ; Waldele v. R. R, 95 N. Y. 274; R. R. v. Mara, 26 Ohio St. 185; Patterson’s Railway Accident Law, 417 and 418; Mullan v. Steamship Co., 78 Pa. 27; Stern v. R. R., 1 W. N. C. 531. The above rule will distinguish the cases cited by plaintiff.
    The place where the boy was picked up and the place under the train where he was first seen, show that he could not have been struck when attempting to cross the street. If he had been struck he would have been knocked away by the locomotive.
    Jan. 21, 1889.
   Per Curiam,

This was an action brought by the parents of Charles Ogden, a child of about ten years of age, to recover damages for his death from an injury alleged to have been the result of the negligence of the defendant company. Hpon the trial below, the court nonsuited the plaintiff, and the refusal to take it off is one of the errors assigned.

We need not discuss the question of the admissibility of the boy’s declarations made shortly after he was injured, for the reason that the-evidence fails to disclose any such negligence on the part of the-defendant company as would render them liable m this action. There was nothing to show that the accident occurred at a crossing. On the-contrary, the boy was first seen at some distance from the crossing, where persons do not usually cross, and where the company was not-bound to use unusual precautions. We can only conjecture whether-he was struck by the train, or was injured in an attempt to get on the cars. The latter seems highly probable from the fact that, when seen, he appeared to be rolling or dragged under a car which was-located about the middle of the train. One of the witnesses said that when he first saw the boy he was' either falling or rolling, he-could not say which, and that he (the boy) was not on the ground. Had he been struck by the engine at the crossing it is at least improbable that he would have been found where he was, and in the condition he was. There being nothing to show that the injury occurred at a crossing, the speed of the train is not an essential element in'the case. The accident was an unfortunate one, but we-cannot hold the defendant company liable therefor in damages, in the absence of any sufficient proof showing negligence on their part.

Judgment affirmed. W. M. S., Jr.

Cf. as to res geste Carroll v. R. R., above, page 234.  