
    Louis Ehrhard, as Administrator, etc., of Mary Ehrhard, Deceased, Respondent, v. Metropolitan Street Railway Company, Appellant.
    Bes gestae — an exclamation by a witness seeing an accident from a distance is not!
    
    In an action to recover damages resulting from the death Of the plaintiffs intestate, who was killed by failing or being thrown from one of the defendant’s street cars, in which a serious question arises as to whether a man who claimed to have seen the accident from the window of his residence actually did see it, testimony given by his wife that at the time the accident happened her husband, while standing or sitting at the window, suddenly uttered a cry, and. said; “ Oh, I have seen a woman thrown from a-car,” is not admissible as part. of the res gestos.
    
    Appeal by the defendant, the Metropolitan Street 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 13th day of May, 1901, upon the verdict of a. jury for $2,000, and also from an order entered in said clerk’s office on the 14th day of May, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    The plaintiff’s intestate met her death by' falling or being thrown from one of the defendant’s street cars. The witness Nixon claimed to-have seen the accident from the window of his residence,
    
      Charles F. Brown, for the appellant.
    
      Charles Bulhley Hubbell, for the respondent.
   Hatch, J.:

This is an action for damages for the death of the plaintiff’s intestate, caused by the alleged negligence of the defendant, and is ■ its second appearance in this court.

Upon the former trial of the action, the jury rendered a verdict in favor of the plaintiff, which upon appeal to this court was-reversed upon the ground that the verdict was against the weight of evidence. (58 App. Div. 613.) It appears by the present record that a recovery has again been had upon practically the same state of facts as were shown upon the former trial.

The conclusion upon the former appeal that the verdict was .against the weight of evidence was largely based upon the improbability of the testimony of the witness Nixon, who claimed to have seen the accident.

The improbability, which the court found to exist, was sufficiently discussed in the opinion rendered with the decision and it is not necessary to further refer to it.

It is quite evident that the plaintiff appreciated the necessity of corroborating the statements made by Nixon, and for that purpose called Nixon’s wife, who gave evidence tending to establish what could be seen from the window at which Nixon claimed to have been when he saw the accident, which was the subject of investigation. If her story is to be believed, it is evident that Nixon’s testimony was not so improbable as it appeared to be, but her statement, as to the distance which she could see, seems to be more improbable than was the testimony.of Nixon. If a story more improbable than the one first told can be said to verify the first improbable story then the plaintiff succeeded in corroborating Nixon’s testimony. We do not deem it necessary now to express any opinion respecting it, as such question is for consideration by the jury.

We think, however, that in the attempted corroboration of Nixon’s statement by his wife a clear error was committed.

It appears that at the time of the accident Mrs. Nixon was attending her' baby and did not witness it. She was asked, Did your husband, while standing or sitting at this window, suddenly utter a cry to you and say anything 1 ” Defendant’s counsel objected to the question as leading, irrelevant, immaterial and not in rebuttal. The objection was overruled, defendant’s counsel excepted and the witness answered, “ Yes, sir.” Plaintiff’s counsel then asked, Did he say to you, ‘ Oh, I have seen a Woman thrown from a car ? ’ ” To this question the defendant objected as leading, irrelevant, immaterial, incompetent and not in rebuttal. After some colloquy between the court and counsel, plaintiff’s counsel suggested that the evidence was admissible as part of the res gestee and upon this suggestion the court overruled the objection, to which ruling the defendant excepted, and the witness answered, “ Yes, sir.”

To constitute evidence part of the res gestee it must be connected with- the subject-matter under investigation. The subject-matter of the present action was the accident and how it occurred and the ■responsibility therefor. Declarations and exclamations of persons not present at the place where it occurred and who did no act which contributed to the accident, and were not otherwise associated with its actual occurrence, are no part of the res gestee as they are in no wise connected with the occurrence itself . The rule is that “ when the act of a party may be given in evidence, his declarations made at the time, and calculated to elucidate and explain the character and quality of the act, and so connected with it as to constitute one transaction, and so as to derive credit from the act itself, are admissible in evidence.” (Waldele v. N. Y. C. & H. R. R. R. Co., 95 N. Y. 274.)

- The exclamation of Nixon was not calculated to elucidate or explain the character and quality" of the act which produced the accident, nor did it bear thereon. Its only tendency was to corroborate Nixon in the fact that-he witnessed the accident by showing that at the time when it occurred he made an exclamation concerning it, and the sole inference sought to be derived therefrom was that he would not have made such exclamation unless he had witnessed it, and thereby probability might be imparted to his testimony.

• Concerning the principal fact, viz., the accident, how it occurred, and who was responsible therefor, the testimony had no connection and neither explained nor elucidated the principal fact; consequently it was not admissible as part of the res gestes.

Declarations of parties and of witnesses are admitted under limited conditions, but the declarations must have connection in point of time with the transaction and be in some measure explanatory of it. Mere proximity in time or probability that the declaration is true is not sufficient; the other elements must concur. (Butler v. M. R. Co., 143 N. Y. 417; Waldele v. N. Y. C. & H. R. R. R. Co., supra.)

The declaration of Nixon admitted in the present case does not fall within the rule. It was, therefore, error to admit it; for which reason the judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Yah Brunt, P. J., O’Brien and -Ingraham, JJ., concurred.

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