
    REHKLAU et v. BOURNE.
    Ohio Supreme Court.
    No. 20692.
    Decided May 16 1928.
    Error to Lucas Appeals.
    Judgment reversed.
    480. EVIDENCE — 82‘J Negligence — 1024 Res Gestae
    1. In action for damages against driver of car which collided with car in which plaintiff was riding as guest, evidence of admissions made by owner driver of car in which injured guest was riding, made at time of accident, and to effect that collission was caused by negligence of driver of that car, properly admitted under proper instructions to jury.
    2. Such admissions properly admitted, although too remote in point of time to be admissible as part of res gestae.
   KINKADE, J.

1. In an action for damages for personal injuries arising by reason of a collision between two automobiles, brought by a guest riding in one of the cars against the owner and driver of the other car, evidence offered as a part of the res gestae by the defendant and admitted by the court, over the objection of the plaintiff, tending to establish admissions made by the owner and driver of the car in which the injured guest was riding, made at the time of the accident, and which admissions were to the effect that the collision was caused by the negligence of the driver of that car, does not constitute prejudicial error against the plaintiff, the injured guest, when the court instructs the jury that negligence on the part of the driver of that car cannot be attributed to the guest riding in the car, and thereby used to defeat a recovery by the guest from the owner and driver of the other car involved in the collision.

2. Even though such admissions be too remote in point of time to be admissible as a part of the res gestae, if they tend to refute the testimony given at the trial by the driver of the car in which plaintiff was riding as a guest, when called as a witness for plaintiff, they would be competent on that ground, and their admission would not constitute prejudicial error against the plaintiff, the negligence of the driver not being attributable to the guest and, the jury being so charged by the court.

(Marshall, CJ., Day, Allen, Robinson, Jones and Matthias, JJ., concur.)  