"Plaintiff's case, as made by his own testimony, and that of others, in part, is about as follows: He was a passenger on defendant's cars, coming from Round Rock to Duval station, and had paid his fare. The train was behind time, and the night was very dark. As the train approached Duval, he was in the rear end of the smoking-car. The conductor called the name of the station, and the train slowed up, and stopped some 50 or 60 feet north of the usual stopping place. He went to the door at the rear end of the car, the front door being locked, and was proceeding through the door when the conductor, who was at the time just inside the front end of the ladies' car, spoke to him, telling him to hurry up, as the cars were going on, and that he would be carried on if he did not hurry. Plaintiff, believing he was at the usual place for discharging passengers, and being unable to see, on account of the extreme darkness, went down the steps, and stepped off the bottom step, expecting to land on the passenger platform, but, instead, he fell some 4 or 5 feet, against some cord-wood that was piled up there on the right of way to a height of 4 to 6 feet, not over 3 or 4 feet from the track. At this point the track is 3 or 4 feet above the surface of the ground, and there was no platform there or other convenience for landing passengers. The only light at the place where passengers usually got on and off was an ordinary lantern, hung there by the agent, which gave a very dim light. The cord-wood piled up at the place where plaintiff was hurt was a little higher than the embankment, and had been brought there for use at the station. Plaintiff was severely hurt by his fall. Three of his ribs were broken near the backbone. It will cause him trouble for a long time, and will, in the judgment of the physician who attended him, permanently weaken him, and materially lessen his capacity to perform physical labor. The defendant's evidence denied the important part of plaintiff's as to negligence of the conductor, the latter testifying that the train was stopped at the usual place; that he got off the cars with plaintiff preceding him, and alighting first, and, as soon as he got down, he (the conductor,) gave the usual signal, and got aboard. He says he did not hurry plaintiff up, nor do or say anything to him to compel him to do so. We have given enough of the testimony to show the nature of the issue of fact. It is not necessary to state more of it. The cause was tried by the court, without a jury, and judgment was rendered for plaintiff for $1,500. The first assignment of error relates to the admission of testimony. James Wright, after stating that the train was stopped north of the usual place, describing the place where the injury occurred, the wood-pile, and the height of the embankment, testified that he first saw the plaintiff that night just after the arrival of the train, and on the wood-pile, but did not recognize him. He says: `Plaintiff struggled there for a minute or two, and then succeeded in getting up, and walked to where I was on the depot platform, and, when he got to me, said, "Squire, I am badly hurt." I asked him where he was hurt, and he put his hand to his side, and said, "Right here." I never talked to him until we got to my store, some 75 feet east of the railroad. He talked and groaned a good deal after he got to the store, but witness did not understand him owing to his deafness. `He stayed at my store about ten minutes. The train did not stop at the station more than a minute. Smith told me while he was at the store that the conductor made him get off at the point where he fell; that he could not see, and was slow about getting off, and the conductor told him to hurry up and get off, and he stepped off, and fell into the wood-pile, and was badly hurt.' This evidence was objected to by defendant because it was hearsay. The court overruled the objection, a bill of exceptions was saved, and the ruling assigned as error.
"It is difficult in some cases to draw the line, and determine just what is and what is not a part of the res gestæ. It may be safely stated, however, that exclamations of bodily or mental pain, and contemporaneous statements as to where the pain is, are admissible in evidence of the existence and locality of the pain; and in some cases, not only the complaints of suffering have been held admissible, but the accompanying statements of the cause of the injury. Mere narrations of past events are not admissible, but sometimes a narration is so close in point of time to the main fact, and is so inseparable from it, as to be a part of it. Each case must depend upon its own circumstances and connections with the principal fact, but, if upon a fair analysis a declaration after the event does not appear to be a continuation
of it, it will not be res gestæ even though made near the time of the occurrence. We do not hesitate to say that the declarations of plaintiff, Smith, while suffering from his fall, that he was badly hurt, and that he was hurt in the side, were admissible. They were but exclamations, statements of an existing fact, verbal acts, and would have been admissible though not made near the time of the injury. But we do not understand how it can be said that his declarations as to what the conductor had said and done can be res gestæ. They amounted to nothing more than a narration of past events, a narration not proceeding from suffering, or from any existing fact connected with the case. The conductor was not present. The train had gone. Plaintiff had walked to Wright's store, some 75 feet, where he remained 10 minutes, during which time he made the statements which appear to be entirely independent of anything then transpiring. Such statements were inadmissible. City of Galveston v. Barbour, 62 Tex. 173; Railroad Co. v. Shafer, 54 Tex. 648; 1 Greenl. Ev. § 102, and note on page 138; Railway Co. v. York, 74 Tex. 364, 12 S. W. Rep. 68; Railway Co. v. Robinson, 73 Tex. 277, 11 S. W. Rep. 327; Railway Co. v. Moore, 69 Tex. 160, 6 S. W. Rep. 631. This evidence was upon a vital point in the case, — the negligence of the conductor. It was in corroboration of what plaintiff had testified to, and may have influenced the finding of the court. We have no mode of ascertaining that it did not. There may be evidence amply sufficient to sustain the finding of the court without this; yet we cannot say the finding was not to some extent at least influenced by this mode of establishing the conductor's want of care.
"Other questions as to the evidence showing contributory negligence on the part of plaintiff, and failing to show negligence on the part of defendant, need not be considered. Our conclusion is that the judgment of the court below should be reversed, because of the error pointed out herein, and that the cause should be remanded."
