Appellant has appealed from an adverse judgment in a suit instituted by him in the District Court of Nolan County to recover damages for personal injuries. He alleges that about the 3d day of December, 1906, while endeavoring *Page 400 to take passage on one of appellant's passenger cars at Roscoe, Texas, and after he had attained a secure footing on the step of the car, one of appellant's employes, the porter, negligently and violently closed the door of the vestibule at which appellant was about to enter, and that he was thereby forcibly knocked from the train and injured as he alleges in his petition, for which he sought to recover as damages nineteen hundred and fifty dollars.
The appellee answered by a general denial and a plea of contributory negligence in attempting to board a moving train.
Error is first assigned to the court's action in excluding the testimony of Tom Weaver and Jack Yarborough to the effect that within eight or ten minutes after the accident appellant related to them the cause of his injury and the manner in which he was knocked off the train substantially as alleged. Appellant insisted that this statement constituted part of theres gestae and as such was admissible. This doctrine is based on the presumption that declarations made at the time of the act or transaction or the event to which they relate, evoked by it, without premeditation, are part of the act or transaction or event. In order to be admissible as part of the res gestae it is not necessary that the declarations be precisely concurrent in point of time with the principal transaction. It should appear, however, that the declarations were evoked by the transaction, and that they were without premeditation; that they spring out of it, are voluntary and spontaneous, and made at a time so near as to preclude the idea of deliberate design. Where the circumstances of the case render it probable that a statement offered as res gestae is the result of premeditation or deliberate design, to effect a certain purpose, it should not be received. So far as shown in the bill of exception to which this ruling relates, there is nothing to indicate that appellant's statements were spontaneous declarations evoked by the transaction, nor do the circumstances exclude the idea of premeditation, and we are not prepared to disapprove the court's ruling in question. See McGowen v. McGowen, 52 Tex. 657 [52 Tex. 657]; City of Galveston v. Barbour, 62 Tex. 172 [62 Tex. 172]; Missouri, K. T. Ry. Co. of Texas v. Tarwater, 33 Texas Civ. App. 116[33 Tex. Civ. App. 116], and cases therein cited.
Error is also assigned to the action of the court in excluding as immaterial and incompetent the following evidence offered by appellant: "I have often been at the incoming and outgoing passenger trains at Roscoe and know that it is almost always the case that parties board such trains after they have started and are in motion. That it is not unusual for passengers on the trains to alight from the trains and then board the trains when they are starting out, and it is often the case that passengers from Roscoe board such trains after they are starting and in motion. That he had at various times in the past boarded the trains at Roscoe in leaving for other points after such trains had started and in motion and going as fast as the train was moving at the time he was hurt, and that he had never before received any injuries in so boarding such trains and found no ill convenience in so boarding same."
It seems to us that this, and other like evidence that was offered *Page 401 and excluded, was admissible on the issue of appellant's contributory negligence. Evidence was offered and received to the effect that appellee's passenger trains usually stopped a short time at Roscoe, and that the stop in this instance was short, and we think the evidence quoted was admissible, not as disproving or excusing a want of due care, but as a circumstance proper for the consideration of the jury, together with all the other circumstances, in determining whether or not appellant was chargeable with contributory negligence in attempting to board the train as he did. The question of negligence is peculiarly one for the jury, and in determining the issue the jury had the right to consider every circumstance offered that would probably affect the action of a person of ordinary caution and prudence. While, of course, the fact, if it is a fact, that appellant and others had frequently boarded trains at Roscoe when in as rapid motion as the train was going at the time under consideration, would not authorize appellant to undertake, as he did, to board the train if under all the circumstances a person of ordinary care and prudence would not have undertaken to do so; yet, as in other words before stated, the fact, if it be true, that appellant had frequently before boarded the train under like circumstances, and that he had seen others likewise do so without injury, was, together with other evidence, for the consideration of the jury in determining whether or not appellant was using that degree of caution and prudence to avoid injury to himself that the law requires of him.
The court's charge is also objected to in a number of assignments, but in view of the easy remedy by correction upon another trial, we will not stop to consider whether the objections would require a reversal of the cause. It will only be necessary to briefly notice them. The court in the tenth paragraph of the charge in effect made the negligence of appellant depend upon whether the care exercised was of that high degree "which very prudent persons are accustomed to use under like circumstances and conditions." The use of the word "accustomed" in that connection is at least questionable and should be omitted. We also notice that in the third clause of the court's charge appellee's duty is defined to be the exercise of "that high degree of care and skill which very cautious, prudent and competent persons generally in their line of business are accustomed to use under similar circumstances," etc. We are not inclined to approve the use of the terms "generally" and "accustomed" in the definition given. The court, too, unnecessarily emphasized the issue of contributory negligence. It seems to have been sufficiently submitted in the twelfth paragraph of the court's charge and there was therefore no necessity of again submitting it in the thirteenth paragraph, which is subject to the further criticism that appellant's negligence, if any, was made to preclude a recovery regardless of whether such negligence was the proximate cause of his injury. If, in fact, as appellant testified, he had secured a firm footing upon the steps of the car before the door was closed upon him, it is not easy to see how his negligence, *Page 402 if any, in attempting to board a moving train proximately contributed to the result of which he complains.
For the error of the court in rejecting the excluded testimony it is ordered that the judgment be reversed and the cause remanded.
Reversed and remanded.