I ■ concur in the opinion rendered by the Chief Justice, except in the following particulars: It is not contended here by the plaintiff in error that it was entitled to put in evidence the declaration of Mrs. Crosby “that it was all her fault,” under its pleas, irrespective o.f whether it was legally proper testimony. I do not think that Mrs. Crosby’s alleged decláration can be regarded as a part of the res gestae. The alleged declaration did not purport to state any fact bearing on the issues. It did not purport to state any fact at all,' but merely her opinion putting the blame on herself. What she omitted to do that she ought to have done, or what she did which she ought not to have done, we are not advised. I do not think the negligence of the mother should have been submitted to the jury. It was not a fact legally and properly *477in issue. 16 Cyc. 1241, et seq.; Jacksonville Electric Co. v. Adams, 50 Fla. 429, 39 South. Rep. 183. I admit the correctness of the statement of the opinion that a railroad company does not owe the same degree of care to a child of tender years on its train in the charge of its mother, or other adult, that would be due from it to such child unaccompanied, or not in charge of an adult. But I do not conceive that the degree of care due from the railroad company to a child can be proven by the mother’s negligence. It is properly proven by the mere fact that the child is in charge of its mother, or other adult person, and whether the latter is negligent or not does not affect the duty of the railroad company, unless its agents know or have reason to believe that the mother, or other adult in charge of the child, is not caring for the- child, or will not do so.
It is true that the interrogatories addressed to W. B. Denham were objectionable in asking for information about local trains and the use of buffer plates on.them. But his answers were apparently before the judge at the time of his ruling, and the first answer seems to be absolutely unobjectionable. The witness was not present. When the objections were made is not clearly apparent. It seems to me under the circumstances the question and answer taken together should have been permitted to stand, for taken together there is clearly no error in, them.