sions of the statute should not be construed as applicable to such cases. This, in effect, was what we held in the case of Davis v. Supreme Lodge Knights of Honor, 165 N. Y. 159, 58 N. E. 891; also Buffalo Loan, Trust & Safe Deposit Co. v. Knights Templar & Masonic Mutual Aid Association, 126 N. Y. 450, 27 N. E. 942, 22 Am. St. Rep. 839. The question here presented was elaborately discussed in the Davis Case, and we regard it as controlling upon the question now presented.

It follows that the record was improperly received for the purpose of showing the cause of death, and consequently the judgment of the Appellate Division and that of the trial court should be reversed, and a new trial ordered, with costs to abide the event,

concur.

PARKER, C. J., and Gray, BARTLETT, CULLEN, and WERNER, JJ.,

VICKSBURG & M. R. CO. v. O'BRIEN et al.

(Supreme Court of the United States, 1886. 119 U. S. 99, 7 Sup. Ct. 118, 30 L. Ed. 299.)

HARLAN, J.19 This action was brought by Mary E. O'Brien and her husband, John J. O'Brien, to recover damages sustained in consequence of personal injuries received by the wife in September, 1881, while a passenger upon the Vicksburg & Meridian Railroad. The declaration alleges that the company "so carelessly, negligently, and unskillfully constructed and maintained its railroad track, engine, and cars, and so carelessly, negligently, and unskillfully conducted itself in the management, control, and running of the same," that the car in which Mrs. O'Brien was seated as a passenger was thrown from the railroad track and overturned, whereby she was seriously injured. There was a verdict and judgment for $9,000 in favor of the plaintiffs. * *

2. At the trial below plaintiffs introduced one Roach as a witness, who, during his examination, was asked whether he did not, shortly after the accident, have a conversation with the engineer having charge of defendant's train at the time of the accident about the rate of speed at which the train was moving at the time. To that question the defendant objected, but its objection was overruled, and the witness permitted to answer. The witness had previously stated. that, on examination of the track after the accident, he found a cross

19 A portion of the opinion of Harlan, J., and the dissenting opinion of Field, J., are omitted.

tie or cross-ties under the broken rail in a decayed condition. His answer to the above question was: "Between ten and thirty minutes after the accident occurred I had such a conversation with Morgan Herbert, the engineer having charge of the locomotive attached to the train at the time of the accident, and he told me that the train was moving at the rate of eighteen miles an hour." The defendant renewed its objection to this testimony by a motion to exclude it from the jury. This motion was denied, and an exception taken.

As bearing upon the point here raised it may be stated that, under the evidence, it became material-apart from the issue as to the condition of the track--to inquire whether, at the time of the accident, (which occurred at a place on the line where the rails in the track were, according to some of the proof, materially defective,) the train was being run at a speed exceeding 15 miles an hour. In this view, the declaration of the engineer may have had a decisive influence upon the result of the trial.

There can be no dispute as to the general rules governing the admissibility of the declarations of an agent to affect the principal. The acts of an agent, within the scope of the authority delegated to him, are deemed the acts of the principal. Whatever he does in the lawful exercise of that authority is imputable to the principal, and may be proven without calling the agent as a witness. So, in consequence of the relation between him and the principal, his statement or declaration is, under some circumstances, regarded as of the nature of original evidence; "being," says Phillips, "the ultimate fact to be proved, and not an admission of some other fact." 1 Phil. Ev. 381. "But it must be remembered," says Greenleaf, "that the admission of the agent cannot always be assimilated to the admission of the principal. The party's own admission, whenever made, may be given in evidence against him; but the admission or declaration of his agent binds him only when it is made during the continuance of the agency, in regard to a transaction then depending et dum fervet opus. It is because it is verbal act, and part of the res gestæ, that

it is admissible at all; and therefore it is not necessary to call the agent to prove it; but wherever what he did is admissible in evidence, there it is competent to prove what he said about the act while he was doing it." 1 Greenl. Ev. § 113.

This court had occasion in Packet Co. v. Clough, 20 Wall. 540, 22 L. Ed. 406, to consider this question. Referring to the rule as stated by Mr. Justice Story in his treatise on Agency (section 134), that "where the acts of the agent will bind the principal, there his representations, declarations, and admissions respecting the subject-matter will also bind him, if made at the same time, and constituting part of the res gestæ," the court, speaking by Mr. Justice Strong, said: "A close attention to this rule, which is of universal acceptance, will solve almost every difficulty. But an act done by an agent cannot be varied, qualified, or explained, either by his declara

tions, which amount to no more than a mere narrative of a past occurrence, or by an isolated conversation held, or an isolated act done, at a later period. The reason is that the agent to do the act is not authorized to narrate what he had done, or how he had done it, and his declaration is no part of the res gestæ."

We are of opinion that the declaration of the engineer, Herbert, to the witness Roach was not competent against the defendant for the purpose of proving the rate of speed at which the train was moving at the time of the accident. It is true that, in view of the engineer's experience and position, his statements under oath, as a witness, in respect to that matter, if credited, would have influence with the jury. Although the speed of the train was, in some degree, subject to his control, still his authority, in that respect, did not carry with it authority to make declarations or admissions at a subsequent time, as to the manner in which, on any particular trip, or at any designated point in his route, he had performed his duty. His declaration, after the accident had become a completed fact, and when he was not performing the duties of engineer, that the train, at the moment the plaintiff was injured, was being run at the rate of 18 miles an hour, was not explanatory of anything in which he was then engaged. It did not accompany the act from which the injuries in question arose. It was, in its essence, the mere narration of a past occurrence, not a part of the res gestæ,-simply an assertion or representation, in the course of conversation, as to a matter not then pending, and in respect to which his authority as engineer had been fully exerted.

It is not to be deemed part of the res gestæ simply because of the brief period intervening between the accident and the making of the declaration. The fact remains that the occurrence had ended when the declaration in question was made, and the engineer was not in the act of doing anything that could possibly affect it. If his declaration had been made the next day after the accident, it would scarcely be claimed that it was admissible evidence against the company. And yet the circumstance that it was made between 10 and 30 minutesan appreciable period of time-after the accident, cannot, upon principle, make this case an exception to the general rule. If the contrary view should be maintained, it will follow that the declarations of the engineer, if favorable to the company, would have been admissible in its behalf as part of the res gestæ, without calling him as a witness, a proposition that will find no support in the law of evidence. The cases have gone far enough in the admission of the subsequent declarations of agents as evidence against their principals. These views are fully sustained by adjudications in the highest courts of the states.

We deem it unnecessary to notice other exceptions taken to the action of the court below.

This case was decided at the last term of this court, and Mr. Justice WOODS concurred in the order of reversal upon the grounds herein stated.

For the errors indicated the judgment is reversed, and the cause is remanded for a new trial, and for further proceedings consistent with this opinion.

Mr. Chief Justice WAITE, Mr. Justice FIELD, Mr. Justice MILLER, and Mr. Justice BLATCHFORD, JJ., dissent.

desmont

དྷན ཅི

BRITTON v. WASHINGTON WATER POWER CO.

(Supreme Court of Washington, 1910. 59 Wash. 440, 110 Pac. 20, 33 L. R. A. [N. S.] 109, 140 Am. St. Rep. 858.)

Action by Roscoe Britton, a minor, by Sadie E. Fisler, his guardian ad litem, against the Washington Water Power Company. From a judgment for plaintiff, defendant appeals.

GOSE, J. This is a suit to recover damages for personal injuries sustained by a minor. The fact asserted and relied upon for a recovery is that Roscoe Britton, a minor 13 years of age, was stealing a ride on the step of one of the defendant's street cars, and that the conductor opened the door of the vestibule and kicked him off, causing him serious injury. There was a verdict and judgment for the plaintiff. The defendant has appealed.

The admitted facts are that the appellant, at the time of the happening of the accident, was a common carrier of passengers for hire, and operating electric cars in the city of Spokane; that the car upon which the accident occurred has a vestibule, opening on each side on to steps used by passengers in entering and leaving the car; that the left door is kept closed, and the right one open, when the car is in service, and that the boy was stealing a ride on the step on the closed side of the car at the time he sustained the injury. The appellant asserts that the boy fell from the step, whilst he insists that he was kicked off the car by the conductor. This was the chief issue at the trial. It is conceded that, immediately after the accident happened, the boy was taken to his home in an unconscious condition.

The boy and his mother, who is also his guardian ad litem, were permitted to testify in substance that the boy remained unconscious for a period of eight days, when he became conscious, and at once stated to the mother that the conductor kicked him off the car. The appellant contends that this was error. We think the statement was a part of the res gestæ. One exception to the rule excluding hearsay evidence is that, when something has occurred, startling enough to produce nervous excitement, spontaneous utterances of parties present are admissible in evidence as a part of the res gestæ. It is not always necessary that the statement be made at the exact time that the shock

occurs. The material inquiry always is whether the statements offered as evidence were made at a time and under such circumstances as to induce the belief that they were not the result of reflection or premeditation.

They derive their admissibility and credibility purely from the circumstances out of which they arise. "The utterance must have been before there has been time to contrive and misrepresent; i. e., while the nervous excitement may be supposed still to dominate, and the reflective powers to be yet in abeyance." 3 Wigmore on Evidence, § 1750. "There is no imaginary line somewhere between a few hours. and a few days, or a few weeks, on one side of which declarations in favor of a party are admissible in evidence, while on the other they are inadmissible. Unless such complaints form a part of the res gestæ they cannot be admitted. And if they are so far detached from the occurrence as to admit of the deliberate design and be the product of a calculating policy on the part of the actors, then they cannot be regarded as a part of the res gesta." Kennedy v. R. C. & B. R. Co., 130 N. Y. 654, 29 N. E. 141. "The time of the occurrence of the principal act is sometimes, by reason of some special circumstance, extended forward so as to make it coincident and connected with subsequent declarations by constructive continuity of time, as, for instance, when the party making the declarations having become unconscious at the very moment of the occurrence of the principal act, the declarations are made by him at the very moment of his regaining consciousness; under such conditions the act and the declarations are said to be simultaneous by relation, the declarations being spontaneous." 24 Am. & Eng. Enc. Law (2d Ed.) p. 685. See, also, Walters v. Spokane International Ry. Co., 58 Wash. 293, 108 Pac. 593.

In the case last cited we said that it is not always essential that the declarations and principal occurrence shall concur in point of time, but that in many instances the fact that a considerable period of time has intervened does not destroy their admissibility as evidence. We further said that the circumstances of each case "should be carefully weighed by the trial judge in exercising his sound discretion." The controlling consideration in each case is, Was the declaration a spontaneous, impulsive statement of a fact? If so, it is a part of the occurrence and is admissible. Dixon v. Northern Pacific Railway Company, 37 Wash. 310, 79 Pac. 943, 68 L. R. A. 895, 107 Am. St. Rep. 810, 2 Ann. Cas. 620.

Tested by the principles we have stated, it is clear that the evidence was properly admitted. The declarations were made, as the witnesses assert, as soon as consciousness was restored. There had been no opportunity for reflection or deliberation. They were as much a part of the occurrence as if they had been made when the boy was raised from the street immediately after falling. So far as he was concerned, there was no conscious intervening time between the injury and the declaration.

THROCKM.Ev. (2D ED.)-26