
    George Z. Taylor, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence — injury from the alleged starting, of a.ear while a passenger was alighting therefrom — contributory negligence in the case of one alighting from a car in motion — statements of the conductor not part of the res gestee — what is covered by an objection that evidence is incompetent.
    
    Where an action is brought to recover damages for personal injuries sustained by the plaintiff while alighting from one of the defendant's trains, and on the trial the plaintiff gives evidence tending to show that the train was at rest when he attempted to alight, and that while he was descending the steps of the car it suddenly started, and the defendant gives evidence tending to show that the train had stopped but had started again and was "actually in motion when the plaintiff left his seat in the car and attempted to alight, it is not error for the court to refuse to charge that if the plaintiff knew that the train was in motion when he attempted to alight he was guilty of contributory negligence as, except under unusual conditions, the question of contributory negligence in such a case must be submitted to the jury.
    Where it appears that a short time before the accident the conductor of the train had an altercation with a passenger who was sitting with the plaintiff, evidence that just before the train reached the station at which the accident happened the conductor asked another passenger whether he "was going to get off at such station, and then said to him, “ You want tobe ready to get off; I will get even with those fellows,” is incompetent. Such declaration is not part of the res gestee.
    
    Adams, P. J., and Spring, J., dissented.
    
      Semble, that in order to warrant the admission of declaiations as part of the res gestee a principal fact or transaction must be established, "and the declarations must grow out of such transaction, illustrate its character, be contemporaneous with it, and derive some degree of credit from it.
    An objection to the admission of evidence on the ground that it was incompetent presents on appeal every ground of incompetency which could not have been obviated at the trial- had special attention been called to it.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, éntered in the office of the clerk of the county of Wayne on the 25th day of January, 1901, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 25th day of January* 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Edward Harris, for the appellant.
    
      A Ibert A. Wray, for the respondent.
   Rumsey, J.:

The action was brought to recover for damages suffered by the plaintiff because of the negligence of the defendant’s servants. On the 21st of September, 1899, the plaintiff was a passenger upon the defendant’s railroad in a train going from Rochester to Clyde in the county of Wayne. While he was leaving the train a* Clyde station it was suddenly started without any notice to him, and he was thrown to the ground and seriously injured, and for the injuries sustained he brings this suit.

No question of fact is presented upon the appeal, and but two exceptions are relied upon by the appellant’s counsel. The first arises upon a refusal of a request to charge. The evidence of the plaintiff tended to show that the train was at rest when he attempted to get off the car; that when he was upon the second or third step from the car platform there was a sudden jerk of the train and he was thrown down and injured. There was evidence on the part of the defendant tending to show that the train having stopped at the station had started again and was actually in motion before the plaintiff left his seat in the car, and was actually moving when he attempted to alight. In view of that evidence the defendant’s counsel requested the court to charge that if the plaintiff knew that the train had started and was in motion before he attempted to get off, then he was guilty of contributory negligence and could not recover. To the refusal of the court to make this charge the defendant excepted.

We think that the exception was not well taken. There may be circumstances under which it might be contributory negligence as a matter of law for a passenger to attempt to alight from a moving train, but that cannot always be the case. If the train has just started and is moving slowly, a prudent man would not hesitate to get off, and except where the train is moving rapidly or where the situation of the train or the condition of the man is unusual, the question whether it is contributory negligence to attempt to alight from a moving train must be left to the jury. Such is the rule to he adduced from the case of Distler v. Long Island R. R. Co. (151 N. Y. 424), and within that rule the question of the plaintiff’s contributory negligence in this case was clearly one for the jury. That being so, it was not error for' the court to refuse to charge that if the plaintiff attempted to alight from a moving train he could not recover.

A more serious question arises, however, upon the exception taken to the admission of the testimony of the witness Emery. The train upon which the plaintiff was traveling was an accommodation train. At Newark, two stations before Clyde, a man named Noon had got upon the train. ITe sat with the plaintiff and the witness Emery in the smoking car. When asked for his fare, there arose some dispute between himself and. the conductor as to the proper amount to be paid, which might possibly have resulted in a little ill-feeling on the part of the conductor towards Noon. After jjassing Lyons, the station before Clyde, Emery went into the rear car of the train and there had a conversation with the conductor. He was asked what that conversation was, to which an objection was taken that it wa.s incompetent,, inadmissible, and that anything the conductor said to Emery in the car next to the smoking car was not competent. The objection was overruled and the witness testified that the conductor asked him whether lie was going to get off at Clyde, and then said to him, “You want to be ready to get off; I will get even with those fellows.”

We are inclined to think that the exception to this evidence was well taken. While it is conceded that .the general rule is that the declarations of an agent against his principal are only competent when they are made while the agent is actually engaged in the business of the principal, and that the declarations in question do not come within this rule, yet it is claimed that they are competent here because they constituted a part of the res gestee. Whether they do or not is the serious question presented in this case.

The plaintiff, however, insists that that ground of incoinpetency was not raised at the trial, and that, therefore, the defendant is not in a situation to urge it upon this appeal. In this he is clearly mistaken. The objection was taken that the evidence was incompetent, and that raised then and presents here every ground of incompetency which could not have been obviated at the trial, had special attention been called to it, The fact that they were not a part of the res gestee, if that be true, was a reason why they should be held to be incompetent, and when one makes an objection to evidence which is based upon a right ground, the fact that he does not give every reason why his objection is well taken is of no importance, provided that the ground for the incompetency could not have been obviated. . Clearly in this case the ground could not have been obviated, and, therefore, it was not necessary that the reason why the incompetency existed should have been more particularly stated, if indeed we can assume that that was not done, which, I think, cannot be fairly assumed from the record.'

In considering the question whether these declarations are competent, it must be borne in mind that the conductor is no party to the action. What he did is of no importance except so far as it shows that the defendant, acting through him as its agent, failed in the performance of some duty which it owed the plaintiff, in consequence of which the injury was received. The liability of the defendant arose only from the act of the conductor. That liability did not depend at all upon the motive with which the conductor did the act. The act was the premature starting of the train. If the train was prematurely started by the conductor, the liability of the defendant exists whether that was done by mistake or with the purpose of injuring the plaintiff. In either case, the defendant would be liable; and in the absence of knowledge of the conductor’s malicious purpose, the fact that he was actuated by such a motive, would not increase the liability of the defendant in the slightest degree. Therefore, it is quite clear that the only material matter with reference to the act of *the conductor was whether or not he did it. His declarations are material only so far as they tend to show that fact. As to all other purposes they are absolutely immaterial.

The claim of the plaintiff is that these declarations are material .because they accompanied the transaction which was the subject of the investigation ; in other words, that they are competent because they constitute a part of the res gestae. It is undoubtedly true that in some jurisdictions great latitude has been indulged in the reception of evidence of this class upon the ground that it constitutes a part of the res gestae. Such cases are those of Insurance Company v. Mosley (8 Wall. 397) and Commonwealth v. M'Pike (3 Cush. 181), but the principle of those cases has never been adopted in this State, and wlien declarations of an agent are offered in evidence as á part of the res gestee, their admissibility has been restricted within very narrow limits. (Patterson v. Hochster, 38 App. Div. 399.)

The rule as to the admission of such declarations in cases of this kind was laid down in the case of Luby v. Hudson River R. R. Co. (17 N. Y. 131) to the effect that to be admissible such declarations must constitute the fact to be proved and not the admission of some other fact, and must be made during the transaction depending at the very time. (P. 133.) That case and the rule laid down by it have been followed in the case of Waldele v. N. Y. C. & H. R. R. R. Co. (95 N. Y. 274) and has never so far as I can discover been departed from.

It has always been held that to warrant the admission of declarations, as part of the res gestae, they must be the main or principal fact or transaction; and only such declarations are admissible as grow out of the principal transaction, illustrate its character, are contemporaneous with it, and derive some degree of credit frotii it. All the authorities assume that there must be a principal fact established by other evidence before declarations can become competent as a part of the res gestae. (Patterson v. Hochster, supra) That case illustrates clearly the object of the admission of such declarations, and the extent to which the rule will be applied. In that case-the plaintiff sued to recover for damages occasioned by stepping into a coal hole, the cover of which was not securely fastened. As tending to show that it was not securely fastened the plaintiff was permitted to introduce in evidence her own declarations made at the time she fell into the hole, to the effect that the cover was not fastened. Those declarations were sought to be used as proof of the principal fact; that is, that the cover of the coal hole had not been securely fastened, but the court held that the admission of those declarations as proof of the principal fact which had not otherwise been shown to exist was error and the judgment was reversed.

Referring to the case of Luby v. Hudson River R. R. Co. (supra) it is quite clear that the declarations of the conductor here were not admissible within the rules there laid down. The fact necessary to be proved was whether the train was prematurely started at the time that the plaintiff was about to step from the car. The act, which was the subject of the investigation, was that done by the conductor by way of starting the train at that very moment. There can be no doubt that if just at that moment the conductor putting his hand on the signal cord had stated that he was about to start the train, such declarations would have been competent as illustrative of the act which he was just about to perform. But those declarations would have been admissible as part of the res gestee because they were actually contemporaneous with the act under investigation, and illustrated the object with which it was done, the object being to accomplish the act which created the liability of the defendant.

The case of People v. Davis (56 N. Y. 95) is relied upon as sustaining the ruling of the trial court. But in that case the declarations were held not to be competent as part of the res gestee, and it is quite clear to my mind that the rule laid down by Judge G-boveb was not broad enough to permit the admission of these declarations of the conductor. The case of St. Louis, L. M. & S. Ry. Co. v. Greenthal (77 Fed. Rep. 150) is also relied upon. But in that case the question was whether the defendant, whose duty it was to use reasonable care to protect its passengers, was liable for the killing of one passenger by another who was insane. It is quite clear that it was material to show that the employees of the defendant in charge of the train had knowledge of the insanity of the murderer before the act was done, and for that purpose what was said by the conductor shortly before upon that point was clearly material, not as constituting a part of the res gestee, but as showing the actual fact that he had received notice of the condition of affairs. As was said before, it is not difficult to find many cases in other jurisdictions where this evidence would be held competent, but I have not been able to find any case in the State of New York in which evidence of this kind is competent upon the theory that it is part of the res gestee.

But the declarations in question were clearly no part of the act of the conductor which subjected the defendant to liability. The act took place after the train had stopped at Clyde and just before it started. Just how long before then the declarations had been made does not appear, but it is clear that they were made some time before the train reached Clyde while on its way towards it at a time when the possibility of doing the act had not arisen, and the conditions which authorized the conductor to act had not yet come into existence. They clearly do not come within the rule laid down in Luby v. Hudson River R. R. Co. (supra) to the effect that declara-' tions to be competent niust constitute the fact to be proved, and must be made during the transaction depending at the very time. They were not a part of the res gestee, therefore, so as to be competent within the rule laid down in Patterson v. Hochster (supra).

No one will claim that the declarations made before the train reached Clyde constituted a part of the transaction occurring when the train was about to leave that station. The declarations which are competent and admissible are.declarations made while the thing is occurring, so that the person who hears them and who is at the sanie time aware of the act which is done, may be able to say what act it was that the declarations, qualified, and it is only because the declarations do qualify the act which is done at the same time they are made that they become material. As is said by Judge Cullen such a declaration derives credit and importance as forming part of the transaction itself. There must be the main or principal fact or transaction, and only such declarations are admissible as grow out of the principal transaction, illustrate its character, or are contemporaneous with it. (Patterson v. Hochster, supra.)

It is quite clear in my mind that the declarations in question can in no way be said to come within the requirements which are necessary to exist within the rules laid down in this State before the declarations of an agent can be received, and for this reason the ruling of the court below was error. The question whether the train was prematurely started was severely litigated. These declarations having1 been received, might have been and must have been considered by the jury as material upon that point, and because they were erroneously received it follows that the judgment and order appealed from must be reversed and a new trial granted, with costs to the appellant to abide the result of the action.

McLennan and Williams, JJ., concurred; Adams, P. J., and Spuing, J., dissented.

Adams, P. J. (dissenting):

On the evening of September 21, 1899, the plaintiff was a passenger upon one of the defendant’s trains and while attempting to leave the same at the station in the village of Clyde he was thrown violently upon the station platform, in consequence of which he sustained serious personal injuries, including a fractured arm.

The evidence upon the part of the plaintiff tended to show that while the plaintiff was about to alight from the lower step of the car the train started with a sudden jerk which caused him to plunge head foremost onto the platform.” While upon the other hand it was claimed, and there was some evidence which supported the contention, that he deliberately swung himself from the train while it was in motion.

There is but a single question in the case of sufficient gravity to require serious consideration from this court, and that arises out of the admission, over the defendant’s objection and exception, of certain declarations made by the conductor of the train to the witness Emery.

The undisputed facts of the case are that the plaintiff took passage upon the defendant’s train at Rochester, intending to leave the same at Clyde, which was the village of his residence. At Newark station he was joined by an acquaintance named Timothy J. Noon, and the two occupied seats in the smoking car, as did also the witness Emery. When the conductor came into this car an altercation arose between him and Noon respecting the latter’s fare. It seems that Noon tendered his fare in money at the rate of two cent's per mile; that the conductor demanded five cents additional which Noon refused to pay; that the conductor thereupon threatened to put Noon off the train at Lyons, which was the next station ■east of Newark, and that in the course of the controversy which •ensued considerable acrimony and excitement were displayed; whereupon Emery, in order to avoid further trouble, paid the five •cents himself and shortly thereafter went into the coach behind the smoking car. Lyons is about six or seven miles west of Clyde, and while the train was between these two stations the conductor had a conversation with Emery, in the course of which, after referring to the disturbance which had just taken place, he asked him if he was intending to get off at Clyde, and upon being informed by Emery that he was, said to him : You want to be ready to get off; I will get even with those fellows.”

This evidence was objected to as incompetent and. inadmissible,, and not in the same car where the plaintiff was; that anything the conductor said to IVIr. Emery in the car next to the smoker is not competent.” At the time the evidence was offered and admitted it had been proven that the train stopped but an instant at the Clyde station, and then started up with a sudden jerk. There was also evidence from which the jury might have inferred that it was caused thus to start by a signal given by the conductor. In these circumstances the trial court received the evidence, not as proof of willful misconduct upon the part of the conductor in starting the train suddenly, but simply as corroborative of the plaintiff’s evidence that the train did not remain at the Clyde station long enough to afford him a reasonable opportunity to alight. The single proposition, therefore, with which we are concerned is, was such evidence-relevant to that issue and admissible for the purpose for which it was received ? The answer to this proposition probably depends upon whether or not the conversation between the conductor and Emery can be regarded as part of the res gestee.

One of the greatest difficulties encountered by the courts in their efforts to apply the law of evidence is to determine when declarations may be received as part of the res gestee, and this difficulty has led to frequent attempts to formulate and simplify a rule which shall be general in its application. The result of these efforts has not been always satisfactory, but for the purpose of this review it may be said that in order to render shell declarations admissible, there must be a principal fact or transaction, and- that only such declarations are admissible as grow out of that transaction, illustrate its character, are contemporary with it and derive some degree of credit from it. (Lund v. Tyngsborough, 9 Cush. 36; 11 Am. & Eng. Ency. of Law [2d ed.], 523.)

The main transaction in this case was, of course, the starting of the train at the Clyde station; for in one aspect of the case the plaintiff’s right of action depends entirely upon whether .the train was started suddenly and before a reasonable opportunity had been afforded him to alight therefrom. The declarations of the defer.d-ant’s conductor, while not growing out of- that transaction, in the sense that they followed it, were nevertheless part and parcel of it, because they related to it and indicated and illustrated its character; that is, the conductor said in substance to Emery, a passenger, “this train will stop but an instant at Clyde, and consequently if you intend getting off at'that station you had better do so as expeditiously as ¡possible.” They were likewise, in my opinion, contemporaneous with it; for they were made by the conductor while in the discharge of a duty owing.by him to the passengers upon this train and imposed upon him by the relation which he bore to the defendant. He knew that the train was,.by his direction, to make an unusually short stop at the station where Emery was intending to leave it, and for that reason notified him of the fact. This notification was given after the altercation between the’ conductor and Noon had occurred, and while the train was between Lyons and Clyde. It must consequently have been given while the train was not more than six miles from the latter station, and within fen or twelve minutes, at most, of the time when the principal transaction occurred ; and inasmuch as the evidence tends to show that the transaction was in accord with the conductor’s declarations, it may properly be said, I think, that the latter derived some degree of credit from it.

In view of all these circumstances I do not well see how the evidence of the witness Emery could have been properly excluded, and many cases can be cited from the reports of this and other States which will support the ruling of the trial court upon principles somewhat analogous to those above mentioned.

Thus, in Matteson v. New York Central R. R. Co. (62 Barb. 364), it was held that the declarations of an agent of the defendant, who was in charge of a gang of men engaged in relaying ties, "that there was sufficient time to relay them before the arrival of the next train, were admissible against, the company, the same being a part of the res gestae.

In Price v. Powell (3 N. Y. 322), which was an action against a carrier for damages sustained in consequence of the breakage of some marble “ tomb tops,” it was declared that a conversation between the master of the vessel upon which the marble was shipped and the consignee, before the marble had been delivered to the consignee, was competent evidence for the plaintiff.

In a Massachusetts case evidence that men working at a gangway were warned shortly before the accident occurred that the plank was unsafe, was held admissible in an action for injuries to a person caused by the fall of the gangway. (Parker v. Boston & Hingham Steamboat Co., 109 Mass. 449.)

In Terre Haute & I. R. R. Co. v. Jackson (81 Ind. 19), which was an action by a passenger to recover damages which he sustained in consequence of a drenching which he received while upon the defendant’s train, and in which evidence was given tending to-show that the water was cast upon the passenger by the direct procurement of a brakeman of the train, it was held competent to prove a previous declaration of the brakeman of his purpose to do it. And in file Federal Circuit Court of Appeals (Eighth Circuit) it was held, that a conversation between a conductor of a train and a passenger, who expressed fear of a fellow passenger, as to the latter’s sanity, is admissible as part of- the res gesta, in an. action against the railroad company for .the killing, shortly after such conversation, of another passenger by the person whose sanity was questioned, and such holding was placed upon the ground that when making the declarations the conductor was, as in the present-instance, acting strictly within the line of liis duty'. (St. Louis, L. M. & S. Ry. Co. v. Greenthal, 77 Fed. Rep. 150.)

But without multiplying authorities, it is sufficient to say that, in my opinion, this case falls directly within the principle enunciated by G-bovbe, J., in People v. Davis (56 N. Y. 95), who thus expressed himself: “ Anything said accompanying the performance of an act, explanatory thereof or showing its purpose or intention, when material, is competent as a part of the act. * * * The length óf time between the act and its subsequent narration by one of the actors I do not regard as material. The question is, did the proposed declaration accompany the act, or was it so connected therewith as to constitute a part of it. If so it is a part of the res gesta, and competent.”

Clearly, in the present instance the conductor’s declarations -indicated and explained the purpose and intent of the principal act which occurred but a few moments later. They were so connected with that act as to constitute a part of it, and, consequently, within the rule above stated, they were part of the res gesta, and admissible.

Another class of cases is often cited in support of a different doctrine, and of this class Luby v. Hudson River R. R. Co. (17 N. Y. 131) and Waldele v. N. Y. C. & H. R. R. R. Co. (95 id. 274) are perhaps fair types. But it is to be observed that the declarations in such cases were generally offered merely as proof of some past transaction, and not infrequently, as in the Luby case, they were declarations which had been made by an employee who was endeavoring thereby to account for what he had done with a manifest purpose of exonerating himself and casting the blame upon his principals, which, it is needless to suggest, is quite a different matter from declarations made while in the discharge of a duty and in anticipation of an event which the employee knew was about to occur.

After a careful examination of the question under review, as it is presented by the facts of this case, I am convinced that the evidence of the conductor’s declarations was admissible for the purpose for which it was received, and consequently I am constrained to dissent from the opinion of Mr. Justice Bums by.

Spring, J., concurred.

Judgment and order reversed upon questions of law and new trial ordered, with costs to the appellant to abide event.  