§7731. Hearsay Evidence Generally.-Hearsay evidence is evidence whose probative force depends, in whole or in part, upon the competency and credibility of some person other than the witness by whom it is sought to produce it. "That this species of testimony supposes some better testimony which might be adduced in the particular case is not the sole ground of its exclusion. Its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover, combine to support the rule that hearsay evidence is totally inadmissible. To this rule there are some exceptions, which are said to be as old as the rule itself." On the ground that the proffered evidence was hearsay, courts have refused to allow proof of statements of an engineer to a third person as to the condition of his engine, in an action for injuries from the alleged defective condition of the engine;2 statements of rough treatment at the hands of employés in ejecting a married woman from a train, which were made on first meeting her husband several days after the occurrence; an entry made by a police surgeon from the report of a policeman, as to what he had heard others say with reference to a railroad accident.*

'Marshall, C. J., in Queen v. Hepburn, 7 Cranch (U. S.) 290. "Atchison &c. R. Co. v. Parker, 55 Fed. Rep. 595.

Gulf &c. R. Co. v. Bruce (Tex.

Civ. App.), 24 S. W. Rep. 927 (no off. rep.).

* Pennsylvania Co. v. McCaffrey, 173 III. 169; s. c. 50 N. E. Rep. 713; 3 Chic. L. J. Wkly. 399; aff'g s. c. 68 Ill. App. 635.

§ 7732. Res Gestae.-One of the exceptions to the hearsay rule is the rule of evidence designated by the phrase res gesta, which sanctions proof of declarations which are a part of some transaction that is itself admissible. Under this principle declarations and statements which accompany and are a part of the transaction and tend to illustrate or explain it are, the transaction itself being admissible, also admissible where so connected as to be a part of such transaction." The limitations on the rule usually recognized are, first, the transaction which the declarations accompany and are a part of, must be admissible; second, the declarations must be part of the admissible transaction which they explain; third, the declarations must relate to present, immediate events, and not amount to mere narratives and statements of opinion; fourth, the declarations must not extend in general beyond the point of time of the transaction itself.

Alabama &c. R. Co. v. Frazier, 93 Ala. 45; s. c. 9 South. Rep. 303; Alabama &c. R. Co. v. Tapia, 94 Ala. 226; s. c. 10 South. Rep. 236; Elledge v. National City &c. R. Co., 100 Cal. 282; s. c. 34 Pac. Rep. 720, 852; Denver &c. R. Co. v. Roller, 100 Fed. Rep. 738; Mack v. Porter, 72 Fed. Rep. 236; s. c. 25 U. S. App. 595; 18 C. C. A. 527; New York &c. Steamship Co. v. Anderson, 50 Fed. Rep. 462; s. c. 1 U. S. App. 176; Augusta Factory v. Barnes, 72 Ga. 217; s. c. 53 Am. Rep. 838; Springfield &c. R. Co. v. Hoeffner, 175 Ill. 634; s. c. 51 N. E. Rep. 884; aff'g s. c. 71 Ill. App. 162; Cleveland &c. R. Co. v. Newell, 104 Ind. 264; s. c. 1 West. Rep. 894; Hewitt v. Eisenbart, 36 Neb. 794; s. c. 55 N. W. Rep. 252; Hancock Co. v. Leggett, 115 Ind. 544; s. c. 15 West. Rep. 504; 18 N. E. Rep. 53; Louisville &c. R. Co. v. Buck, 116 Ind. 575; s. c. 2 L. R. A. 520; Winter v. Central &c. R. Co., 74 Iowa 448; s. c. 38 N. W. Rep. 154; Louisville &c. R. Co. v. Earl, 94 Ky. 368; s. c. 15 Ky. L. Rep. 184; 22 S. W. Rep. 607; De Mahy v. Morgan's Louisiana &c. Co., 45 La. An. 1329; s. c. 58 Am. & Eng. R. Cas. 448; 14 South. Rep. 61; Commonwealth v. Hackett, 2 Allen (Mass.) 136; Harris v. Detroit City R. Co., 76 Mich. 227; s. c. 42 N. W. Rep. 1111; Mobile &c. R. Co. v. Stinson, 74 Miss. 453; s. c. 21 South. Rep. 14, 522; Leahey v. Cass Ave. &c. R. Co., 97 Mo. 165; s. c. 10 S. W. Rep. 58; Waller v. Hannibal &c. R. Co., 83 Mo. 608; Means v. Carolina &c.

It is also required that

R. Co., 124 N. C. 574; s. c. 45 L. R. A. 164; 32 S. E. Rep. 960; Trenton Pass. R. Co. v. Cooper, 60 N. J. L. 219; s. c. 38 L. R. A. 637; 37 Atl. Rep. 730; Pennsylvania R. Co. v. Lyons, 129 Pa. St. 114; s. c. 18 Atl. Rep. 759; State v. Murphy, 16 R. I. 529; Galveston v. Barbour, 62 Tex. 172; s. c. 50 Am. Rep. 519; Railroad v. Wyrick, 99 Tenn. 500; s. c. 42 S. W. Rep. 434; Travellers' Ins. Co. v. Mosley, 8 Wall. (U. S.) 397; s. c. 19 L. ed. 437; Washington &c. R. Co. v. McLane, 11 App. (D. C.) 220; s. c. 25 Wash. L. Rep. 485; Piper v. Spokane, 22 Wash. 147; s. c. 60 Pac. Rep. 138; Bridge v. Oshkosh, 71 Wis. 363; s. c. 37 N. W. Rep. 409; Robinson v. Superior Rapid Transit R. Co., 94 Wis. 345; s. c. 34 L. R. A. 205; 68 N. W. Rep. 961; Thompson v. Trevanion, Skin. 402; Rex v. Foster, 6 Car. & P. 325. Statements of a conductor to a passenger, who has become alarmed for her personal safety by the conduct of another passenger, as to the facts within the knowledge of the conductor tending to show that such other passenger was a madman, are part of the res gestæ in an action against the company for the death of a third passenger killed by such insane passenger: St. Louis &c. R. Co. v. Greenthal, 77 Fed. Rep. 150; s. c. 40 U. S. App. 554; 23 C. C. A. 100.

1 Elliott Ev., § 539. See also, Texas &c. R. Co. v. Douglass, 73 Tex. 325; s. c. 11 S. W. Rep. 333.

the declarations should be voluntary and spontaneous and made at a time so near the principal transaction as to preclude a design to misrepresent. It is not necessary that the declaration should be coincident in time with the main fact proved, if the two are so clearly connected that the declaration can, in the ordinary course of affairs, be said to be a spontaneous explanation of the real cause." "The declara

tions must, however, be so proximate in point of time as to grow out of, elucidate, and explain the character and quality of the main fact, and must be so closely connected with it as virtually to constitute but one entire transaction, and to receive support and credit from the principal act sought to be thus elucidated and explained. The evidence offered must not have the ear marks of a device, or after-thought, nor be merely narrative of a transaction which is really and substantially past." The rule will allow proof of declarations uttered before the happening of the accident if connected with and a part of the transaction,—as, for example, a declaration of an intention to become a passenger made by one injured at a railway station.10 But explanations, declarations, and conversations, before or after the happening of the accident and not part of the transaction, are excluded under the res gestæ doctrine.11 The case against the admission of declarations after

Alabama &c. R. Co. v. Hawk, 72 Ala. 112; s. c. 47 Am. Rep. 403. The statements of an engineer about twenty minutes after a collision and while all the parties were on the ground, that he could not stop his train because the air brakes would not work, as the air between the tender and the baggage car had been cut off, are part of the res gesta and admissible to corroborate his testimony to the same effect: Missouri &c. R. Co. v. Vance (Tex. Civ. App.), 41 S. W. Rep. 167. Declarations by one alleged to have been injured by negligence, made to the witness at the place of and within a few minutes after the accident and while he was still writhing under the pain inflicted thereby, as to the manner in which the accident occurred, are admissible as part of the res gestor: International &c. R. Co. v. Anderson, 82 Tex. 516; s. c. 17 S. W. Rep. 1039; Texas &c. R. Co. v. Robertson, 82 Tex. 657; s. c. 17 S. W. Rep. 1041.

10 Chicago &c. R. Co. v. Chancellor, 165 111. 438; s. c. 46 N. E. Rep. 269; rev'g s. c. 60 Ill. App. 525; Baltimore &c. R. Co. v. State, 81 Md. 371; s. c. 32 Atl. Rep. 201. An arrangement made by deceased several days before he was killed while in a railroad station, to meet his daughter-in-law, whom he expected on a train, is admissible as part of the res geste in an action against the railway company for negligently causing his death, as explaining his presence at the station: Denver &c. R. Co. v. Spencer, 25 Colo.

9; s. c. 10 Am. & Eng. R. Cas. (N. S.) 536; 52 Pac. Rep. 211.

11 Louisville &c. R. Co. v. Pearson, 97 Ala. 211; s. c. 12 South. Rep. 176; St. Louis &c. R. Co. v. Kelley, 61 Ark. 52; s. c. 31 S. W. Rep. 884; Durkee v. Central &c. R. Co., 69 Cal. 533; s. c. 58 Am. Rep. 562; McCarrick v. Kealy, 70 Conn. 642; s. c. 40 Atl. Rep. 603; Metropolitan R. Co. v. Collins, 1 App. (D. C.) 383; s. c. 21 Wash. L. Rep. 811; Poole v. Tennessee &c. R. Co., 92 Ga. 337; s. c. 17 S. E. Rep. 267; Chicago &c. R. Co. v. Chancellor, 165 Ill. 438; s. c. 46 N. E. Rep. 269; rev'g s. c. 60 Ill. App. 525; Ohio &c. R. Co. v. Cullison, 40 Ill. App. 67; Armil v. Chicago &c. R. Co., 70 Iowa 130; s. c. 30 N. W. Rep. 42; Worden v. Humeston &c. R. Co., 72 Iowa 201; s. c. 33 N. W. Rep. 629; Atchison &c. R. Co. v. Wilkinson, 55 Kan. 83; s. c. 39 Pac. Rep. 1043; Walker v. O'Con nell, 59 Kan. 306; s. c. 52 Pac. Rep. 894; Louisville &c. R. Co. v. Ellis, 97 Ky. 330; s. c. 17 Ky. L. Rep. 259; 30 S. W. Rep. 979; Eastman v. Boston &c. R. Co., 165 Mass. 342; s. c. 43 N. E. Rep 115; Williamson v. Cambridge &c. R. Co., 144 Mass. 148; s. c. 10 N. E. Rep. 790; Kelly v. Chicago &c. R. Co., 88 Mo. 534; Wengler v. Missouri &c. R. Co., 16 Mo. App. 493; Keller v. Sioux City &c. R. Co., 27 Minn. 178; Friend v. Burleigh, 53 Neb. 674; s. c. 74 N. W. Rep. 50; Willis v. Atlantic &c. R. Co., 120 N. C. 508; s. c. 26 S. E. Rep. 784; Martin v. New York &c. R. Co., 103 N. Y. 626; s. c. 5 Cent. Rep. 793; Sherman v. Oneonta, 59

the happening of the accident is especially clear in cases where the injured person has been removed from the place of the injury."

12

§ 7733. Res Gestae Continued-Declarations of Bystanders.-Declarations of bystanders are admissible the same as if made by one of the actors, where they are so connected with the transaction as to characterize and be a part of it.13 Thus, evidence of the acts of other passengers and of the outcries made by them and by bystanders at the time a passenger jumped from a street car threatened with a collision at a railroad crossing and was injured, is admissible in an action for the damages thereby sustained, as descriptive of the occurrence and as part of the res gestæ, and also to show reasonable apprehension of danger. But declarations and remarks made by mere bystanders after the happening of the accident are not to be regarded as res gestæ and are plainly inadmissible."

14

§ 7734. Exclamations and Declarations of Existing Pain.-As a general rule, whenever it is material to show a person's physical condition, such person's exclamations or declarations of present existing pain and its locality, whether made at the time of or subsequently to

Hun (N. Y.) 294; s. c. 36 N. Y. St. Rep. 587; 12 N. Y. Supp. 950; Tinker v. New York &c. Co., 92 Hun (N. Y.) 269; s. c. 71 N. Y. St. Rep. 840; 36 N. Y. Supp. 672; Johnston v. Oregon &c. R. Co., 23 Or. 94; s. c. 31 Pac. Rep. 283; Garrick v. Florida &c. R. Co., 53 S. C. 448; s. c. 13 Am. & Eng. R. Cas. (N. S.) 541; 31 S. E. Rep. 334; Houston &c. R. Co. v. Ritter, 16 Tex. Civ. App. 482; s. c. 41 S. W. Rep. 753; Vicksburg &c. R. Co. v. O'Brien, 119 U. S. 99; Steinhofel V. Chicago &c. R. Co., 92 Wis. 123; s. c. 65 N. W. Rep. 852. Testimony of a father suing for the death of his infant son, who was run over by a street-car, that, upon his reaching the place two or three minutes after the accident, he accused the driver of careless driving as the cause, is inadmissible where he did not see the accident or know of it until he heard shouts: Senn v. Southern R. Co., 108 Mo. 142; s. c. 18 S. W. Rep. 1007. Declarations of engineers who have had charge of an engine, made at various periods from six hours to five months prior to an accident to a brakeman from its sudden starting, in relation to the condition of the engine, are no part of the res gesta, and are

inadmissible against the railroad company: Louisville &c. R. Co. v. Stewart, 56 Fed. Rep. 808; s. c. 9 U. S. App. 564; 6 C. C. A. 147.

12 Lissak v. Crocker Estate Co., 119 Cal. 442; s. c. 51 Pac. Rep. 688; Roach v. Western &c. R. Co., 93 Ga. 785; s. c. 21 S. E. Rep. 67; Pennsylvania Co. v. McCaffrey, 173 Ill. 169; s. c. 50 N. E. Rep. 713; 3 Chic. L. J. Wkly. 399; aff'g s. c. 68 III. App. 635; Chicago &c. R. Co. v. Howard, 6 Ill. App. 569; Cleveland &c. R. Co. v. Sloan, 11 Ind. App. 401; s. c. 39 N. E. Rep. 174; Lane v. Bryant, 9 Gray (Mass.) 245; s. c. 69 Am. Dec. 282; Richstain v. Washington Mill Co., 157 Mass. 538; s. c. 32 N. E. Rep. 908; Merkle v. Bennington, 58 Mich. 156; s. c. 55 Am. Rep. 666; Farber v. Missouri Pac. R. Co., 139 Mo. 272; s. c. 40 S. W. Rep. 932; 7 Am. & Eng. R. Cas. (N. S.) 700.

131 Elliott Ev., § 550.

14 Kleiber v. People's R. Co., 107 Mo. 240; s. c. 14 L. R. A. 613; 17 S. W. Rep. 946.

15 Felska v. New York &c. R. Co., 152 N. Y. 339; s. c. 46 N. E. Rep. 613; Murray v. Salt Lake City R. Co., 16 Utah 356; s. c. 52 Pac. Rep. 596.