On the evening of September 21, 1899, the plaintiff was a passenger upon one of the defendant’s trains and while attempting to leave the same at the station in the village of Clyde he was thrown violently upon the station platform, in consequence of which he sustained serious personal injuries, including a fractured arm.
The evidence upon the part of the plaintiff tended to show that while the plaintiff was about to alight from the lower step of the car the train started with a sudden jerk which caused him to plunge head foremost onto the platform.” While upon the other hand it was claimed, and there was some evidence which supported the contention, that he deliberately swung himself from the train while it was in motion.
There is but a single question in the case of sufficient gravity to require serious consideration from this court, and that arises out of the admission, over the defendant’s objection and exception, of certain declarations made by the conductor of the train to the witness Emery.
The undisputed facts of the case are that the plaintiff took passage upon the defendant’s train at Rochester, intending to leave the same at Clyde, which was the village of his residence. At Newark station he was joined by an acquaintance named Timothy J. Noon, and the two occupied seats in the smoking car, as did also the witness Emery. When the conductor came into this car an altercation arose between him and Noon respecting the latter’s fare. It seems that Noon tendered his fare in money at the rate of two cent's per mile; that the conductor demanded five cents additional which Noon refused to pay; that the conductor thereupon threatened to put Noon off the train at Lyons, which was the next station ■east of Newark, and that in the course of the controversy which •ensued considerable acrimony and excitement were displayed; whereupon Emery, in order to avoid further trouble, paid the five •cents himself and shortly thereafter went into the coach behind the smoking car. Lyons is about six or seven miles west of Clyde, and while the train was between these two stations the conductor had a conversation with Emery, in the course of which, after referring to the disturbance which had just taken place, he asked him if he was *594intending to get off at Clyde, and upon being informed by Emery that he was, said to him : “ You want to be ready to get off; I will get even with those fellows.”
This evidence was objected to “ as incompetent and. inadmissible,, and not in the same car where the plaintiff was; that anything the conductor said to IVIr. Emery in the car next to the smoker is not competent.” At the time the evidence was offered and admitted it had been proven that the train stopped but an instant at the Clyde station, and then started up with a sudden jerk. There was also evidence from which the jury might have inferred that it was caused thus to start by a signal given by the conductor. In these circumstances the trial court received the evidence, not as proof of willful misconduct upon the part of the conductor in starting the train suddenly, but simply as corroborative of the plaintiff’s evidence that the train did not remain at the Clyde station long enough to afford him a reasonable opportunity to alight. The single proposition, therefore, with which we are concerned is, was such evidence-relevant to that issue and admissible for the purpose for which it was received ? The answer to this proposition probably depends upon whether or not the conversation between the conductor and Emery can be regarded as part of the res gestee.
One of the greatest difficulties encountered by the courts in their efforts to apply the law of evidence is to determine when declarations may be received as part of the res gestee, and this difficulty has led to frequent attempts to formulate and simplify a rule which shall be general in its application. The result of these efforts has not been always satisfactory, but for the purpose of this review it may be said that in order to render shell declarations admissible, there must be a principal fact or transaction, and- that only such declarations are admissible as grow out of that transaction, illustrate its character, are contemporary with it and derive some degree of credit from it. (Lund v. Tyngsborough, 9 Cush. 36; 11 Am. & Eng. Ency. of Law [2d ed.], 523.)
The main transaction in this case was, of course, the starting of the train at the Clyde station; for in one aspect of the case the plaintiff’s right of action depends entirely upon whether .the train was started suddenly and before a reasonable opportunity had been afforded him to alight therefrom. The declarations of the defer.d-*595ant’s conductor, while not growing out of- that transaction, in the sense that they followed it, were nevertheless part and parcel of it, because they related to it and indicated and illustrated its character; that is, the conductor said in substance to Emery, a passenger, “this train will stop but an instant at Clyde, and consequently if you intend getting off at'that station you had better do so as expeditiously as ¡possible.” They were likewise, in my opinion, contemporaneous with it; for they were made by the conductor while in the discharge of a duty owing.by him to the passengers upon this train and imposed upon him by the relation which he bore to the defendant. He knew that the train was,.by his direction, to make an unusually short stop at the station where Emery was intending to leave it, and for that reason notified him of the fact. This notification was given after the altercation between the’ conductor and Noon had occurred, and while the train was between Lyons and Clyde. It must consequently have been given while the train was not more than six miles from the latter station, and within fen or twelve minutes, at most, of the time when the principal transaction occurred ; and inasmuch as the evidence tends to show that the transaction was in accord with the conductor’s declarations, it may properly be said, I think, that the latter derived some degree of credit from it.
In view of all these circumstances I do not well see how the evidence of the witness Emery could have been properly excluded, and many cases can be cited from the reports of this and other States which will support the ruling of the trial court upon principles somewhat analogous to those above mentioned.
Thus, in Matteson v. New York Central R. R. Co. (62 Barb. 364), it was held that the declarations of an agent of the defendant, who was in charge of a gang of men engaged in relaying ties, "that there was sufficient time to relay them before the arrival of the next train, were admissible against, the company, the same being a part of the res gestae.
In Price v. Powell (3 N. Y. 322), which was an action against a carrier for damages sustained in consequence of the breakage of some marble “ tomb tops,” it was declared that a conversation between the master of the vessel upon which the marble was shipped and the consignee, before the marble had been delivered to the consignee, was competent evidence for the plaintiff.
*596In a Massachusetts case evidence that men working at a gangway were warned shortly before the accident occurred that the plank was unsafe, was held admissible in an action for injuries to a person caused by the fall of the gangway. (Parker v. Boston & Hingham Steamboat Co., 109 Mass. 449.)
In Terre Haute & I. R. R. Co. v. Jackson (81 Ind. 19), which was an action by a passenger to recover damages which he sustained in consequence of a drenching which he received while upon the defendant’s train, and in which evidence was given tending to-show that the water was cast upon the passenger by the direct procurement of a brakeman of the train, it was held competent to prove a previous declaration of the brakeman of his purpose to do it. And in file Federal Circuit Court of Appeals (Eighth Circuit) it was held, that a conversation between a conductor of a train and a passenger, who expressed fear of a fellow passenger, as to the latter’s sanity, is admissible as part of- the res gesta, in an. action against the railroad company for .the killing, shortly after such conversation, of another passenger by the person whose sanity was questioned, and such holding was placed upon the ground that when making the declarations the conductor was, as in the present-instance, acting strictly within the line of liis duty'. (St. Louis, L. M. & S. Ry. Co. v. Greenthal, 77 Fed. Rep. 150.)
But without multiplying authorities, it is sufficient to say that, in my opinion, this case falls directly within the principle enunciated by G-bovbe, J., in People v. Davis (56 N. Y. 95), who thus expressed himself: “ Anything said accompanying the performance of an act, explanatory thereof or showing its purpose or intention, when material, is competent as a part of the act. * * * The length óf time between the act and its subsequent narration by one of the actors I do not regard as material. The question is, did the proposed declaration accompany the act, or was it so connected therewith as to constitute a part of it. If so it is a part of the res gesta, and competent.”
Clearly, in the present instance the conductor’s declarations -indicated and explained the purpose and intent of the principal act which occurred but a few moments later. They were so connected with that act as to constitute a part of it, and, consequently, within the rule above stated, they were part of the res gesta, and admissible.
*597Another class of cases is often cited in support of a different doctrine, and of this class Luby v. Hudson River R. R. Co. (17 N. Y. 131) and Waldele v. N. Y. C. & H. R. R. R. Co. (95 id. 274) are perhaps fair types. But it is to be observed that the declarations in such cases were generally offered merely as proof of some past transaction, and not infrequently, as in the Luby case, they were declarations which had been made by an employee who was endeavoring thereby to account for what he had done with a manifest purpose of exonerating himself and casting the blame upon his principals, which, it is needless to suggest, is quite a different matter from declarations made while in the discharge of a duty and in anticipation of an event which the employee knew was about to occur.
After a careful examination of the question under review, as it is presented by the facts of this case, I am convinced that the evidence of the conductor’s declarations was admissible for the purpose for which it was received, and consequently I am constrained to dissent from the opinion of Mr. Justice Bums by.
Spring, J., concurred.
Judgment and order reversed upon questions of law and new trial ordered, with costs to the appellant to abide event.