dissenting.
The facts of this case are in some respects identical' with those in Wetzel v. Omaha Maternity & General Hospital Ass’n, ante, p. 636. This defendant was also defendant in that case, and it appears that it was organized to own and conduct a hospital for profit, and that the hospital is not an eleemosynary or charitable institution and is liable for negligence in the performance of duties undertaken by it.
The court submitted the case to the jury with the following instruction: “The plaintiff bases her right to recover in this action upon two specifications of negligence on the part of the defendant: (1) That the defendant was negligent in permitting Adolph F. Broz to remain for a long time unattended and unguarded in his room, and in the hallways of the hospital, and in negligently leaving in an exposed and unguarded place the poison which Adolph F. Broz took. (2) That after the employees and agents of the defendant were apprised that Adolph F. Broz had taken poison, it negligently failed to administer proper remedies and antidotes for the relief of said Adolph F. Broz.” The issues so stated were substantially the issues tried by the parties.
*658The theory of the defendant is that the deceased left his room and went to the sinkroom, and there found the bichloride of mercury which he took with suicidal intent, and that in such case the defendant would not be liable. The theory of the plaintiff is that he found these tablets on the table near his bed in his room, and that he took them by mistake, supposing they were medicine prescribed for him. By the above quoted instruction the court submitted both of these theories to the jury. It appears to be ■conceded that, if the deceased was in his right mind so as to be responsible for his acts and took this poison with the purpose and intention of destroying his own life, there would be no liability on the part of the defendant. One of the contentions of the defendant is that there was not sufficient evidence to justify submitting to the jury the question whether these bichloride tablets were found upon the table in the patient’s room. The evidence of Miss Thimling, his nurse, was clear and positive that when she left his room a few minutes before he took the poison there were no tablets or medicine of any kind on the table, and that she never saw any of the tablets in his room, and these tablets were never taken to the sick rooms. Her testimony was supported by the positive testimony of many witnesses and must prevail, unless there is substantial evidence to the contrary. Some of the defendant’s ■evidence upon this point will be further stated in another ■connection. The only evidence tending to prove that they were found there by the patient is the evidence of the plaintiff and her brother., Dr. Mares, that the patient made declarations to that effect. This evidence was objected to as incompetent and hearsay.
There was substantial evidence that the deceased had gone to this sinkroom and had taken this bichloride of' mercury for the purpose of taking his own life. The next morning, about nine hours afterwards, Dr. Mares visited the patient in his room, and upon the witness-stand he was asked: “Now, doctor, you* may state what Adolph Broz said to you in that room that morning?” This was objected to on the ground that it was incompetent and *659hearsay. The objection was overruled, and the defendant answered: “When I came in the room I said, ‘Adolph, what did you do, and what did yon do it for?’ and he said, ‘I did not do anything.’ He said, ‘I took four tablets off the tray on the table.’ He pointed at the table, and he said he thought it was his medicine, and I asked him what kin'd they were, and he said they were blue in color, and a little smaller than usual. And then he told me that he took them because lately they were changing medicine on him, and so he thought it was his medcine, and I asked him if he nsed to take so many, and he said, no, he only took two, and sometimes only one, and those were grayish in color and a little bit larger. And then he also told me that he drank a glass full of something that tasted oily. I asked him, ‘Did it make you sick,’ and he said, ‘No, not right away,’ but in a few minutes he started to get cramps and pains in his stomach and started to vomit.” The defendant then moved to strike out this evidence because it was incompetent and hearsay, and the motion was overruled. This evidence was, of course, incompetent as a dying statement, since evidence of dying statements is allowed only in criminal cases. It is contended that it is competent as a part of the res gestoe. The modern rule as to what is and what is not a part of the res gestee is aptly and carefully stated in Insurance Co. v. Mosley, 8 Wall. (U. S.) 397. This case is of the more importance and interest because it considered and determined no other question and because two of the justices dissented, and the question is quite elaborately and thoroughly discussed in the dissenting opinion. The law is stated in the syllabus: “The res gestee are the statements of the cause made by the person injured almost contemporaneously with the occurrence of the injury, and those relating to the consequences made while the latter subsisted and were in progress.” That is, in an injury of this kind there are two things to be considered, the cause and the consequences of the injury. If it is desired to prove the cause of the injury, statements “made by the person injured almost contemporaneously with the occurrence” are res ges*660tee, the. things done that constitute the cause of the injury. If it is desired to prove the consequences of the .injury, then statements made by the injured person while the consequences subsist and are in progress may be evidence of the res gestee, the things suffered as the consequences of the injury. And so, in this case, if it was desired to prove the condition in which the physician found the patient, it would be competent to prove the questions, of the physician and the answers of the patient as to his suffering and such matters as would enable the physician to determine his condition. In the case cited Mrs. Mosley testified that her husband left the bed “between 12 and 1 o’clock; that, when he came back, he said he had fallen down the back stairs, and almost killed himself; that he-had hit the back part of his head in falling down-stairs; * * * she noticed that his voice trembled; he complained of his head, and appeared to be faint and in great pain.”' His son testified: “That, about 12 o’clock of the night before-mentioned, he saw his father lying with his head on the counter, and asked him what was the matter; he replied that he had fallen down the back stairs and hurt himself very badly.” From this it appeared that in a very short time after the deceased left his bed he was found injured and made these declarations as to its cause, which brings them within the rule announced in the syllabus, as statements of the cause made by the person injured almost contemporaneously with its occurrence.
It will be observed that the declarations testified to by the witness in the case at bar related wholly to the cause of his injury, the taking of the poison, and not to the consequences of the injury. They were made, not almost contemporaneously with the cause to which they related, but some nine hours thereafter. He was asked by his brother-in-law: “What did you do, and what did you do it for?”' He had had ample time to consider his 'action, and had suffered very much from its consequences. He knew that his brother-in-law would disapprove of his taking poison purposely. His answer tended to shield himself from blame, and was in no sense contemporaneous with the act *661that it is supposed to explain. This same witness was allowed to testify to a conversation that he had with the •deceased at about 10 o’clock on the following night, nearly 24 hours after the cause of the injury, which declarations related wholly to the cause of his injury and had nothing to do with the consequences of the injury; that is, the ■condition in which the physician found him.
The plaintiff first saw her husband after the accident about 4 o’clock the following afternoon. She testified that when she went into the room the nurse was treating Broz, and that she asked the nurse what her husband took, a¿d the nurse said, “He took some poison pills,” and that while she was in the room the nurse was there. “He (Broz) was pointing to the table, and he said: ‘I took them on that table, on the little tray, I thought they were my medicine ;’ ” that the nurse told her to ask him and she asked him, and that his statement was an answer to her question, and that after her husband had made that statement the nurse did not say a thing. It seems clear that this ■evidence was not admissible as part of the res gestee.
It is said that this evidence was competent as admissions of the nurses which would be binding upon the defendant. The physician testified that he was requested by the head nurse of the hospital to ask these questions of the patient, and that he reported to the nurse what the patient had said, and that the nurse replied: “That is what I thought.” If we consider that the doctor’s evidence in regard to these declarations was competent as proving admissions on the part of the hospital authorities, the supposed admission of the nnrse was so indefinite as to be -of little value. Her expression, “That is what I thought,” might have related to the fact of his having taken poison, or it might have related to the manner of his taking it, as shown by the alleged declaration. Such evidence is not of sufficient importance to overcome the evidence on this point which is further stated in the discussion of the following contention. The contention that these tablets were found on the table in the patient’s room should not have been submitted to the jury.
*662The defendant contends that there is no evidence of negligence on its part in the treatment of Broz after the discovery of his condition. The evidence shows that, if the patient had swallowed a large quantity of bichloride of mercury, a delay of a half hour, and probably a much shorter time, in administering antidotes would generally, if not always, prove fatal. The interne and nurses were not physicians. This was understood by all parties. The physicians were employed by the .parties and their friends. Negligence therefore, could not be imputed to the defendant because of not keeping a competent physician in continual attendance. It was the duty of the defendant to furnish attendants of ordinary prudence and caution.
Miss MacRea testified that she and Miss .Thimling were in the hall not far from the patient’s room, and when she heard the moaning and vomiting in the patient’s room she went there immediately and found him upon the floor, etc., and called his nurse, Miss Thimling, who came at once. They together returned the patient to his bed, and Miss MacRea questioned him as to the cause of his condition, and he told her that he had taken tablets from the sinkroom. She ran to the sinkroom and obtained some of the bichloride tablets and 'showed them to the patient, and asked him if that was what he took, and he answered that it was; that he knew he never would get well, and that he didn’t want to live any longer, and that was the reason he took the tablets. She then ran immediately to the head nurse and to Dr. Parsons, the interne. She says this was done instantly and didn’t take her more than a minute, and they told her to give him some milk ánd the whites of eggs, and she and Miss Thimling gave him the milk and whites of eggs before Dr. Parsons arrived, which was almost immediately, and that then, under Dr. Parsons’ directions and with his help, they gave him a large quantity of milk and at least three whites of eggs. The witness called Dr. Coulter and informed him of the condition and what they had done. He gave them some additional directions which they proceeded to comply with.
*663Miss Thimling, who was in charge of the patient at the time, testified that she was in the hall and heard groaning and vomiting in the patient’s room. Miss MacEea was-with her and went at once to the patient’s room, and she-followed almost immediately. She gave him his medicine at about 9 o’clock that night and was frequently in his-room afterwards and before the accident occurred. He-came out into the hall several times and she took him back.. He complained that his room was hot and that he couldn’t sleep. She testified that Miss MacEea went to his room first and she followed immediately after, and that when she-reached the room he was telling Miss MacEea what was-the matter with him, and said that he had taken blue pills,, and she asked him where he got them, and he told .her,. “Out of the little room, out of a bottle,” and she asked him what he took them for, and that was the last she heard. She was called out of the room to attend to another patient and returned immediately. When she went back to-the room Miss MacEea had gone to call the head nurse and. the doctor, and when Miss MacEea returned they gave him-a glass of milk and the white of an egg. After they had given him that he refused to swallow, and Dr. Parsons, the interne, had come by that time, and they gave him two quarts of milk and the whites of two eggs through the stomach tube; that Dr. Parsons talked with him, and he “told the same thing that he told Miss MacEea.” She never heard him say anything else as to where he got the tablets. She testified that the bichloride tablets were kept in the sinkroom, and that she had never seen any in any place in the hospital except in the sinkroom, operating room, and the drug room; that when she had given him his medicine she washed the glass and placed it on the table beside his bed, and that there was-no medicine on the table, and that she never saw any medicine in his room during the time that she waited on him, except when she administered it to him.
Dr. Parsons also testified that when he was called by Miss RacRea he went at once to the patient’s room, and he corroborates her fully in regard to the treatment and in *664regard to Broz’s statements as to the cause of the accident.
If these witnesses are to be believed, Mr, Broz procured these tablets from the sinkroom. It was not discovered that he had taken poison until it had already taken effect ■and he was suffering severely therefrom. Then the nurses placed him upon the bed and got their instructions from the head nurse and Dr. Parsons and administered the proper antidotes without any delay. The proper treatment must have been administered within a very few minutes, not more than three or four, probably within two minutes after he was found. This evidence is without contradiction. The allegation of negligence in the care of the patient after the poison was taken is not supported by the •evidence and should not have been submitted to the jury.
The evidence of the plaintiff and the witness Mares as to declarations of the deceased were incompetent, and the •allegations of negligence in leaving the poison tablets in the patient’s room and in neglecting proper remedies after it was discovered that he had taken poison were not sustained, and those issues should not have been submitted to the jury.
Letton and Hamer, JJ., concur in this dissent.