
    ELECTRIC RAILWAY COMPANY v. CARSON.
    1. Declarations mad© by an employe© of a railway company wlrile investigating the cause of the derailment of a car, being inadmissible as a part of the res gestos, were properly rejected as hearsay. The admissions which were ruled to be competent in Krogg v. Atlanta & West Point R. Co., 77 Ga. 202, were properly received irrespective of the question of res gestee.
    
    
      2. The presumption being that the plaintiff’s injuries were caused ■by the negligence of the defendant company, and it having failed to show affirmatively that it was in all essential respects diligent, and no error of law having been committed, this court will not overrule the discretion of the trial judge in refusing to grant a new trial.
    March 16, 1896. Argued at the last term.
    Action for damages. Before Judge MacDonell. City court of Savannah. May term, 1895.
    The plaintiff was a passenger on defendant’s street-car in Savannah. It suddenly left the track and ran to the sidewalk and against a tree, and she was thrown down, striking her hip. on the railing of the seat, and seriously injured. She did not know what caused it to leave the track. The conductor of the car testified, that he and Cook, the motorman, immediately investigated the cause of the accident. They found that a rock had been placed against the rail and covered with sand, and this had derailed the car. Cook picked up the pieces of the stone which had been crushed, and said, “Here is what threw us off.” A piece of the rock was sent in with the report. There was nothing the matter with the car, the machinery, or the rails. Witness did not see the rock on the track before the derailment. It was covered with sand. Cook found it when they went to investigate, and said, “Here is what ran us off, and here are the pieces crushed by the car.” The fragments of rock were on the track and on the rail behind the car. Cook had left Savannah some time before the trial, and witness did not know where he was. Another passenger on the car testified that he got out through curiosity to see what the trouble was; that they found a rock about the size of his fist, about a foot or eighteen inches from the rail; that he did not see any fragments on the rail, but did not observe closely.
    After verdict for the plaintiff, defendant moved for a new trial on the grounds, that the finding was contrary to law and evidence; and that the court erred in ruling out, on plaintiff’s motion, what Cook said during the investigation, as above stated.
    
      Gharltow, Machall & Anderson, for plaintiff in error.
    
      •George W. Owens, contra.
   Simmons, Chief Justice.

This was an action against a street railway company for damages on account of personal injuries to the plaintiff, occasioned by the derailment of one of its cars while she was a passenger thereon. She obtained a verdict against the company for $300, and the defendant made a motion for a new trial, which was overruled, and it excepted.

1. It is complained that the trial judge erred in rejecting testimony offered by the defendant as to statements made by one of its employees while investigating the cause of the derailment. The court was clearly right in rejecting such testimony. It was hearsay, and not admissible as a . part of the res gestee. To render such declarations as these admissible as a part of the res gestae of the occurrence in question, they must be so nearly connected with the act as to be “free from all suspicion of device or afterthought.” (Code, §3773.) They must be so spontaneous and involuntary, so much a part of the act itself, as to render it reasonably certain that they were not the result of deliberation or reflection. See Travelers Insurance Co. v. Sheppard, 85 Ga. 777. Certainly this cannot be said as to statements made after the accident and the injury in question had occurred, by an employee of the party who offered them, and while he was going over the ground investigating the cause of the derailment, and probably seeking for such an explanation as would relieve himself and his employer from blame.

Counsel for the plaintiff in error relied on what was said in the decision of this court in Krogg v. Atlanta & West Point R. Co., 77 Ga. 202, in regard to the admissibility of statements of the general manager of the railroad company as to the cause of the accident, made at the scene of the injury soon after it occurred and while he was engaged in an investigation of the matter. The statements referred to in that decision, however, were not, as in this instance, declarations offered by the railroad company in its own favor, but were offered by the plaintiff as admissions on the part of the company, against its interest; and what was said as to their being a part of the res gestae is to be understood in the sense in which this term is used in the law of agency, and as meaning the res gestae of the investigation which the agent who made them was then making in behalf of his principal, and not as meaning the res gesteo of the accident. It was not necessary in that ease, in order to render the statements admissible, that they should be treated as a part of the res gestae of the accident, for, as will be seen from the opinion of the court, they were clearly admissible on other grounds.

2. The presumption against a railroad company where an injury is shown to have been occasioned by the running of its cars applies as well to street railroad companies as> to others. City etc. R. Co. v. Findley, 76 Ga. 311. The evidence in this case fails to show that the company was in, all essential respects diligent; and there being sufficient evidence to sustain the verdict, and no error of law having been committed, this court will not overrule the discretion of the trial judge in refusing to grant a new trial.

Judgment affirmed.  