| Ark. | Jun 29, 1895
(after stating the facts). The question for us to determine is whether this statement of the brakeman McFadden was part of the res gestae, and proper to go to the jury as evidence tending to show negligence. This statement was made after the accident, in response to an inquiry by the witness Cornelius. The acts to which it referred were completely past. The injured child had been borne away from the place of the accident. It was not a spontaneous utterance called forth by the accident, but was made in response to an inquiry, and was only a narration of past transactions by which McPadden was endeavoring to show that not himself, but another, was to blame for the accident. While there are cases that support the admission of such statements as part of the res gestae, yet we believe the best considered cases and the weight of authority to be the other way. It was said in a recent case that the “res gestae are events speaking for themselves through the instinctive words and acts of participants, not the words and acts of participants when narrating the events.” Graves v. People, 32 Pac. 63. See also Vicksburg etc. R. Co. v. O'Brien, 119 U. S. 105, and note; Waldele v. Railway Co. 95 N.Y. 274" date_filed="1884-03-11" court="NY" case_name="Waldele v. New York Central & Hudson River Railroad">95 N. Y. 274; Sullivan v. Oregon R. & N. Co. 12 Oregon, 392; 1 Greenl. Ev. sec. 108; Fort Smith Oil Co. v. Slover, 58 Ark. 179; 1 Wharton, Ev. secs. 258 and 259; Barker v. St. L., I. M. & S. Ry. Co. 126 Mo. 143" date_filed="1894-12-22" court="Mo." case_name="Barker v. St. Louis, Iron Mountain & Southern Railway Co.">126 Mo. 143; Wharton, Crim. Pv. sec. 262.
If, at the time of the accident, or immediately after-wards, the brakeman McPadden, moved by the excitement of the occasion, had exclaimed to the engineer “I gave you the signal in time to have stopped, but you were looking the other way,” such an instinctive exclamation, made under the effect of the excitement caused by the accident, would have been a part of the res gestae, and admissible. And so a spontaneous utterance of that kind, if made to bystanders immediately after accident, would be admissible, when it emanated from, and was called forth by, the excitement of the occasion. But the statement of McUaddeu to Cornelius did not accompany the act, nor was it an instinctive exclamation called forth by the accident, and emanating directly from it. It is difficult to lay down general rules to cover all cases, but, in our opinion, this was only a statement of an employee of defendant concerning a past transaction, and not a part of the res gestae. Under well known rules, it might, under some circumstances, have been used to contradict and. impeach 'the testimony of the witness McPadden, but it was not competent as evidence to show negligence on the part of the "defendant company.
This ruling, we think, is not in conflict with the case of L. R. etc. Railway Co. v. Leverett, 48 Ark. 343. In that case the evidence complained of was the statement of the injured person concerning the cause of his injuries. Mr. Justice Battle, who delivered the opinion of the court, said that “the statement of Leverett was made immediately after he was run over, and while the wrong complained of was incomplete, he being still under the car, and was a part of the res gestae, and fairly goes to explain the cause of the condition in which he was at the time it was made.” We do not think the case here falls within the rule laid down and followed in that case.
There were other rulings of the trial court complained of by the appellant. The court refused to allow the appellant to cross-examine witnesses concerning their family relations. The extent to which either party may be allowed to cross-examine a witness of the opposing side concerning collateral facts and matters not in issue is a question, to a large extent, within the discretion of the trial court, and we do not.see that the ■court abused its discretion in this regard, or committed any error, except as above noted. Por that error the judgment of the circuit court is reversed, and the case remanded for a new trial.