
    FRANKLIN L. NOWELL, Administrator, &c. v. THE MAYOR, &c., OF THE CITY OF NEW YORK.
    
      Res gestee—Evidence as to cause of injury sufficient to carry case to jury— Contributory negligence—acting with prudence—Corporate negligence— not giving warning.
    
    Declarations made by a party at the initiation of an act continuous in its nature, as to his intent with respect to the mode in which he purposes to do the act, are competent evidence to prove that ho did it according to his expressed intention, provided the continuity of the act has not been interrupted for a space of time during which things may have happened to cause a change in the original intention. But a declaration which, for aught that appears, refers to a past transaction, is inadmissible.
    Shortly before the injury, the deceased was in One Hundred and First street, and he was found in the center of that street at the foot of a wall twenty-five feet high, which abruptly changed 'the grade of the street, with a broken leg, and other great hurts.—Held, sufficient to carry the case to the jury on the question as to whether he received the injuries by falling over the wall.
    There is no contributory negligence when the injured party acts with ordinary prudence, on that apprehension of danger which he is bound to have under the circumstances, and those appearances of danger which the situation manifests. •
    Thus, when one walking along a street which has the usual conditions of streets with nothing about it to induce apprehension of danger, comes to a wall abruptly ending the street, and falls over the wall, there being no light, or anything else that might be a warning of danger,—Held, that the jury might find there was no contributory negligence. Further held, that the not placing at the abrupt ending of the street a warning as to danger, which would suffice to warn persons of ordinary prudence, was negligence on the part of the corporation.
    Before Sedgwick, Oh. J., Van Vorst and Freedman, JJ.
    
      Decided December 7, 1885.
    Plaintiff’s exceptions ordered to be heard at first instance at general term.
    The action was for negligence, in allowing West One Hundred and First street to be graded so that part of it went to the top of a wall that retained the bank there, the rest of the street going from the foot of that wall. The wall was about twenty-five feet high. The complaint alleged that the plaintiff’s intestate, while walking in the street, fell from the top of the wall and was greatly wounded. In the testimony it appeared that there were no lights at the top of the wall, or any fence upon it. There was no witness of the alleged falling. At the close-of plaintiff’s testimony, the court dismissed the complaint, on the ground that there was no proof that the deceased had not been guilty of contributory negligence.
    Further facts appear in the opinion.
    
      Frank F. Blackwell, attorney, and of counsel for plaintiff,
    after citing on the question of contributory negligence, Tolman v. Syracuse, Bing. & N. Y. R. R. Co., 98 N. Y. 198 ; Smedis v. Bklyn. & Rockaway Beach R. R. Co., 88 Ib. 13 ; Massoth v. Del. & H. Co., 64 Ib. 524 ; Weber v. N. Y. C. & H. R. R. Co., 58 Ib. 451; Morrison, Admr. v. N. Y. C. & H. R. R. Co., 63 Ib. 643; Dorland v. N. Y. C. & H. R. R. Co., 18 Week. Dig. 51 ; S. C., 19 Ib. 76 ; McGuire v. Spence, 91 N. Y. 303 ; Weed v. Village of Balston Spa, 76 Ib. 329 ; Rehberg v. Mayor, 91 Ib. 137; Clifford v. Dam, 81 Ib. 52 ; Todd v. City of Troy, 61 Ib. 506 ; Brusso v. City of Buffalo, 90 Ib. 679 ; Bullock v. Mayor, &c., 1 East. Rept’r. 170; and Hume v. Mayor, 74 N. Y. 264, argued I. It was the duty of the city, having itself created this obstruction some three years before, to properly guard it and to warn the traveler of his danger (Brusso v. City of Buffalo, 90 N. Y. 679).
    II. The remarks made by deceased to his son at the cars down town, and that to his- daughter in One Hundred and First street, were improperly excluded. It will be noticed that the words sought to be proved were contemporaneous with the act done, and explanatory of it. They were not the relation of a passed transaction. They were, therefore, not within some of the cases which hold this kind of evidence objectionable. Such a statement was permitted in Dorland. v. N. Y. C. &. H. R. R. Co., 19 Week. Dig. 51; 18 Ib. 76 ; Insurance Co. v. Mosely, 8 Wall. 397; Waldele v. N. Y. C., &c. R. R. Co., 95 N. Y. 274; Thompson v. Trevanion, Skinner, 402 ; Averson v. Kinnard, 6 East, 197; McKing v. Foster, 6 Carr. & Payne; Commonwealth v. Pike, 3 Cush. 181; Rawson v. Haigh, 2 Bingh. 99; Hanover R. Co. v. Coyle, 55 Penn. St. 402 ; Beaver v. Taylor, 1 Wall. 637). Immediately upon hearing a groan, Simpson, being but a few steps away from the foot of the wall, went to the deceased. It is fair to presume, from the evidence, that the groan was simultaneous with the fall. Simpson had reached a point near the wall long before the deceased fell. At that moment the deceased made a statement, explanatory of his condition, which was excluded. If the groan and the striking of the ground by deceased were simultaneous, then what passed between him and Simpson was within several seconds of the time of the fall, and what the former said at that time was competent evidence as part of the res gestee. (Commonwealth v. Hackett, 2 Allen, 137 ; Hanover R. R. Co. v. Coyle, 55 Penn. St. 396). Both the above cases are approved, and the whole question of res gestee is carefully considered in Waldele v. N. Y. C. & H. R. R. Co., 95 N. Y. 274.
    
      E. Henry Lacombe, counsel to the corporation, and David J. Dean, of counsel for defendant,
    on the question of contributory negligence, cited, Cordell v. Central R. R. Co., 75 N. Y. 330 ; Hale v. Smith, 78 Ib. 487; Reynolds v. N. Y. Cent. R. R. Co., 58 Ib. 248 ; Becht v. Corbin, 92 Ib. 658 ; Hart v. Hudson River Bridge Co., 84 Ib. 56 ; Riceman v. Havemeyer, 84 Ib. 647; Warner v. Central R. R., 44 Ib. 471; Dorlon v. Mayor, C. P. January, 1884 ; Gaynor v. Old Colony R. R., 100 Mass. 208 ; Murphy v. Doane, 101 Ib. 466 ; McGuire v. Spence, 91 N. Y. 303).
   By the Court.—Sedgwick, Ch. J.

The plaintiff attempted to prove that the intestate had fallen from the top of a retaining wall of the bed of New avenue. Shortly before the accident the intestate was visiting his daughter in her house. That house was in One Hundred and First street, between Ninth and Tenth avenues. That street went easterly to the top of the wall, and the wall was between Ninth and Eighth, avenues. The daughter, as witness for plaintiff, testified that the intestate, as he left her house, said where he was going. She was then asked on the part of plaintiff, “What did he say?” The defendant objected to the question, and it was excluded. It had been proved that the intestate’s dwelling was in One Hundred and Thirty-ninth street. The particular place was not proved.

It seems to me that it was competent for the plaintiff' to prove that the deceased when he left the house intended to go along One Hundred and First street easterly in a direction which would bring him to the wall. His. mind being, by presumption, in a condition usual with the generality of men, his intention at the time was the-thing that would precede and induce his subsequent movements and their direction. And his declaration of his. intention was primary evidence of what that intention, was. “ Declarations made at the time of the transaction, and expressive of its character, motive or object, are-regarded as verbal acts indicating a present purpose and. intention, and are therefore admitted in proof like any facts. So upon an inquiry as to the state of mind, sentiments or disposition of a person, at any particular period,, his declarations and conversations are admissible. They are part of the res gestae.”

He had gone to his daughter’s house, from the house-of a son. On the trial, that son was asked what his father said, when he was leaving the house, as to where he was going. This question was properly excluded, because it was immaterial as to anything the father did thereafter, unless the declaration referred to his intended course from the daughter’s house. But, before he left the daughter’s house, too much time had passed and too many things had happened, to make his declaration when leaving the son’s house, any evidence of what he did after leaving the daughter’s house.

The deceased had been found at the foot of the wall, by. a whin ess for plaintiff. The witness’ attention was attracted, probably, by the moaning of the wounded man. He found the latter on the ground, at the foot of the wall and in the center of One Hundred and First street, which continued easterly from the foot of the wall. The plaintiff’s counsel, asked the witness, “ What, if anything, immediately upon reaching the man, did he say to you ? ” Without further explanation of the character of the answer intended to be elicited by the question, tire testimony sought was hearsay. Ho event or act appears in testimony of which a declaration of the witness would be part. The probabilities are that the declaration, if disclosed by the answer, would show that it referred to a past event, and would be of the nature of testimony to the occurrence of that event, rather than explaining or giving character to it.

At the close of the testimony for plaintiff, the counsel for defendant moved to dismiss the complaint on three grounds : 1st. That there was no evidence of corporate negligence ; 2d. That there was no evidence that fading from the wall was the cause of death ; and, 3d. That there was no evidence that the plaintiff was free from contributory negligence.

The following is a sufficient statement of facts, which the plaintiff could justly claim that a jury might have found: A short time before the deceased was hurt, he was in One Hundred and First street, and he was found in the center of that street, at the foot of a wall twenty-five feet high, which abruptly changed the grade of the street. He moved from one point to the other, either by what the jury might say, was a direct, usual and more convenient way, or by one that they might find was indirect, unusual and the less convenient—the former, as they might find, calling for less exertion of mind and body. If he did take the direct way, then the jury could find, coupling inferenees from the broken leg and other great hurts of the man, that'he fell over the wall. It is not proper to say that the jury would be forced to this result. It was a question for them. They might consider that if the intestate received his wounds otherwise than by falling from the wall, it must have been at a point easterly, and from an unusual combination of circumstances, and that it did not appear that such circumstances had happened with no presumption of law or fact that they did happen.

On the point of contributory negligence, the argument is that*as there is no proof of what occurred when the deceased reached the top of the wall and fell, if it be assumed that he fell, it cannot be said that he proved or gave testimony that the accident did not result in part from his own negligence. Of course, if there be no proof of attending circumstances, then the plaintiff fails. There may be proof, however, of these things without any direct testimony as to them. The case of Tolman v. Syracuse, &c. R. R. Co., 98 N. Y. 198, is a sufficient guide here.

Contributory negligence is omitting to act with ordinary prudence either upon that apprehension of danger which by law the injured person is bound under the case to have, or upon those appearances of danger which the situation manifests. If it be true that there is no reason to apprehend danger, or if the situation manifests no appearance of danger, there can be no neglect of a duty which is based upon these things.

In the present case it appears from the testimony of the witnesses that the street on which the intestate walked had the usual conditions of a street, and there was nothing about it which would induce apprehension of danger in a passenger, especially of danger from the ending of that part of the street at the top of a wall. Then the testimony showed that there was such an absence of light upon the place of the wall in .the street, or of anything that might be a warning, that the jury could have found that there was no appearance of danger, and hence no negligence in omitting to do otherwise than walking along the street, in a manner usual to those who go upon an unlighted street. This appeal does not make it necessary to decide whether, when the accident is the result of such a defect in the street, it is or is not necessary for the plaintiff to show a freedom from contributory negligence. It is only necessary to hold that in the facts, there was a scope which would permit the jury to find that the plaintiff was not negligent.

I cannot doubt that there was a corporate duty to give at the place of such danger on a highway, a warning as to there being a danger, which would suffice to inform persons of ordinary prudence that they should not go farther.

The plaintiff’s exception are sustained, the costs of the hearing to abide the event of the new trial, which is ordered.

Van Vobst and Freedman, JJ., concurred.  