The deceased, Charles H. Smith, was a porter on a Rock Island passenger train running from Amarillo, Tex., to Shawnee, Okla. It is alleged in the petition that on the night of the 14th of December, 1907, at between one and two o'clock a. m. of such date, just as the train was pulling into the town of Choctaw, the deceased, in the performance of his duty as porter in attempting to open the door of the vestibule on one of the coaches preparatory to the alighting of the passengers, fell out of the train, breaking both of his legs, and sustaining other injuries, from which a short time thereafter he died. It is further charged that such fatality was the result of the defendant's negligence in failing to provide a suitable, safe, and sufficient roadbed and track near Choctaw; second, the negligent slacking or jerking of the train in nearing the depot at Choctaw; and, third, the gross and wanton negligence of defendant in permitting deceased to lie where he had fallen without giving any aid or making any effort to find him until from about two o'clock in the night until seven o'clock in the morning. These were the three acts of negligence charged against defendant and they constitute the sole basis of plaintiffs' cause of action. At the conclusion of plaintiffs' testimony the court sustained a demurrer *Page 579 to the evidence on the ground that the testimony had failed to disclose any negligence on the part of defendant. From such judgment the plaintiffs appeal to this court.
The first proposition presented is that the court erred in taking the case from the jury. It is contended by plaintiffs in error that deceased, under the law, is presumed to have been doing his duty, and that such presumption, in connection with the testimony submitted, was sufficient to have allowed the issues of negligence on the part of defendant to be submitted to the jury. It may be true, as a matter of law, that the deceased is presumed to have been doing his duty, but this of itself by no means implies that the defendant was guilty of negligence. The burden was upon plaintiffs to make out aprima facie case of negligence on the part of defendant. Hence the authorities cited in support of the contention that deceased was presumed to have been doing his duty are not applicable to the facts in the case at bar. The plaintiff charged in her petition that the deceased came to his death by reason of the rough and insufficient roadbed and by reason of the sudden jerking of the train. The plaintiff was allowed great latitude in her endeavor to prove these facts, and, from a careful reading of the entire record and of the excerpts of testimony in the briefs of both parties, we are unable to find a word which tends to prove that the road was unusually rough or unevenly constructed, or that there was any negligent, sudden, or unusual jerking of the train as it pulled into Choctaw, and, so far as these two grounds of her cause of action are concerned, there was a total failure of proof, and the court was correct in sustaining the demurrer to the evidence thereto.
The next proposition urged in plaintiffs in error's brief is that the court erred in rejecting testimony as to the statements made by deceased when he was discovered the next morning. The plaintiffs offered a witness by whom it was sought to prove that deceased made certain statements to him as to how the accident occurred. The court rejected such testimony, and plaintiffs assign the ruling of the court as error on the ground that such testimony was admissible as part of theres gestae. The facts were that the deceased fell off the train some time between one *Page 580 and two o'clock, and lay where he fell until some time the next morning, when, upon being discovered, it is claimed he made the statements which were offered in evidence. When the witness was offered, defendant objected to his testimony, and the court sustained the objection. Whereupon counsel for plaintiffs excepted and made the following offer of proof:
"Comes now the plaintiff and offers to prove by the witness Stubblefield that at the time he found the deceased, Charles H. Smith, along by the side of the track, before he had been removed from the scene of the accident, he stated to the witness that he was undertaking to open the door of the vestibule of one of the coaches of the defendant, preparatory to letting the passengers out at Choctaw, on the north side of the coach, and that the coach door opened hard, and had been opening hard for some time, and in trying to get it open, and the train checking suddenly for the station, precipitated him out of the vestibule by the door opening suddenly in response to the pull he was making on it, and that his hand at that time was caught in the small finger and the finger next to it, so as to indicate that he grabbed as he fell, and that the injury is one that would be made as he related it to the witness."
Aside from the question as to whether such statement is properly a part of the res gestae, it is entirely too narrative in form to be admissible under the rule of evidence.
In 11 Enc. of Ev. 309, the rule is stated as follows:
"A rule which is stated more frequently than any other relating to this subject is that a merely narrative statement of the past transaction is not admissible as part of theres gestae. This is based on the ground that such statements are not spontaneous."
This rule is supported by a number of decisions from 32 states, including Smith v. Territory, 11 Okla. 669,69 P. 805, and also decisions from the Supreme Court of the United States.
In the case of Smith v. Territory, supra, this court in the body of the opinion says:
"The general rule is that declarations, to become a part of the res gestae, must accompany the act which they are supposed to characterize and explain, and must so harmonize as to be clearly one transaction. To make such declarations competent as evidence, they must exclude the idea of a narration of past occurrences of events, and they must have been made contemporaneous *Page 581 with the transaction or act which they are supposed to characterize and explain. And, to constitute a part of theres gestae, two things must occur, namely, the accompanying acts, and the declarations attending the whole transaction. We think that this case comes within the rule announced by the Court of Appeals of the state of Texas, in the case of Jones v.State [22 Tex. App. 324[22 Tex. Crim. 324]] 3 S.W. 230, where it was said: 'Declarations of a defendant subsequent to the commission of the offense, if wanting in spontaneity and instinctiveness, are but the party talking about the facts, and not the facts speaking through the party, and form no part of the res gestae, but are self-serving declarations, and as such are properly rejected as evidence.' "
In 16 Cyc. 1162, the rule is stated as follows:
"As the statements are circumstantially probative of a present bodily condition, not evidence of the facts asserted, statements of a narrative nature as to the causes, attendant circumstances, or effect of the sickness or injuries, or the manner in which, or the time at which, an injury was inflicted, or the nature of its former symptoms, or in general as to bodily condition at another time, are incompetent. * * *"
The same rule is announced in the Modern Law of Evidence, vol. 2, 1346; 24 Am. Eng. Enc. of Law, 683.
In support of the rule above quoted from 11 Enc. of Ev., we find the following note:
"In Waldele v. New York Cent. H. R. Co., 95 N.Y. 274, 47 Am. Rep. 41, reversing 29 Hun (N.Y.) 35, it appeared that the plaintiff's intestate, an educated deaf-mute, was found lying on the defendant's track badly bruised and mangled shortly after the passage of a train which had been immediately followed by a lone engine. Plaintiff's theory was that his intestate, after waiting for the train to pass, had stepped upon the track in front of the engine following. The deceased, when found, was removed to the sidewalk near by, and about 30 minutes after the accident made a statement by signs to the effect that he had waited for the long train to go by and had been struck by the engine which followed it. This statement was held improperly admitted because not a part of the res gestae. 'The claim that the declarations can be treated as part of theres gestae is not supported by authority in this state. The resgestae, speaking generally, was the accident. These declarations were no part of it — were not made at the same time, or so nearly contemporaneous with it as to characterize it, or throw any light upon it. They *Page 582 are purely narrative, giving an account of a transaction not partly past, but wholly past and completed. They depend for their truth wholly upon the accuracy and reliability of the deceased and the veracity of the witness who testified to them.' The court comments extensively upon the cases and their lack of harmony, and approves the rule laid down in numerous cases cited to the effect that to make declarations admissible as res gestae, they must not be narrations of a past occurrence, but must have been made as a part of the main transaction and so characterize that transaction as to form a part of it."
We believe the circumstances of this case and the form of the statement offered in evidence bring it clearly under the great weight of authority for rejecting this class of testimony. Besides, the weight of authorities inclines toward leaving the question of admissibility of this class of testimony in a great measure to the discretion of the trial court. The facts are all before him, and he has a better opportunity to determine whether testimony of this character is in fact a part of the things done, a part of the res gestae, than an appellate court. On this question Wigmore, in section 1750, says:
"* * * There is a lamentable waste of time by Supreme Courts in here attempting either to create or to respect precedents. Instead of struggling weakly for the impossible, they should decisively insist that every case be treated upon its own circumstances. They should, if they are able, lift themselves sensibly to the even greater height of leaving the application of the principle absolutely to the determination of the trial court. Until such a beneficent result is reached, their lucubrations over the details of each case will continue to multiply the tedious reading of the profession."
The learned author then cites several hundred decisions in support of this doctrine.
The next proposition urged is that the court erred in rejecting the testimony of John Smith. John Smith was a brother of deceased, but at the time of this suit was the husband of the plaintiff, Mary Smith. Mary Smith was suing in a representative capacity as the widow of Charles H. Smith and as next friend to the children of deceased. Under section 5281, Rev. Laws 1910, John Smith had no interest whatever in the result of the suit, *Page 583 but every cent of it, if any should have been recovered, inured to the widow and children.
The question of the competency of his testimony is settled by section 5050, Rev. Laws 1910, which provides:
"The following persons shall be incompetent to testify: * * * Third, husband and wife, for or against each other, except concerning transactions in which one acted as the agent of the other, or when they are joint parties and have a joint interest in the action. * * *"
John Smith was neither acting as the agent of his wife in this action, nor did he so act in the subject thereof, nor was he a party to the action. Hence his testimony was incompetent. This disposes of all the material propositions which bear upon the first two grounds for a cause of action, and the judgment of the trial court in sustaining the demurrer to the evidence as to these two grounds is sustained.
As to the third ground, the ground upon which plaintiff sought damages for the mental anguish and suffering of deceased, while the facts in relation thereto might have been sufficient to have led reasonable men to differ, and therefore should have been submitted to the jury, yet inasmuch as plaintiff was suing under section 5281, Rev. Laws 1910, which provides that the damages recovered must inure to the exclusive benefit of the widow and children, and inasmuch as recovery for his injuries, mental anguish, and suffering is a cause for which he could have recovered had he lived, and inasmuch as whatever he might have recovered on such grounds belonged to his estate and not exclusively to the widow and children, she could not recover for mental anguish in the capacity in which she brought this suit, but should have brought a separate action on that ground. Hence whatever error may have been committed by the court in this regard was harmless.
The judgment, therefore, is affirmed.
By the Court: It is so ordered. *Page 584