Dissenting Opinion by
Judge Hannah.The wrongful apt, pleaded in the petition as the basis of. the. plaintiff’s claim of right to recover herein, was that the automobile was ‘ ‘ run into, upon and against the team and. vehicle in which this plaintiff was riding, with such force and violence as to overturn the wagon, in which plaintiff was riding.’7 This the defendant denied; and the issues between the parties thereby became clearly defined.. The evidence in respect of the signals given by,the plaintiff and her husband to the driver of. tbo .automobile tended neither to prove nor'to'disprove that the automobile did run into the team and Wagon-It was therefore irrelevant.
’ Merely that a thing sought to. be shown in evidence occurred’ contemporaneously with a happening,' constituting a fact in issue, i. e., one which one party, affirms an(d the: other denies, and which, if established, operates to^créaté or to assist in creating legal liability as sought to be imposed in the proceeding in which it is proposed to, show such occurrence in evidence, does not render such fáct á relevant fact. Contemporaneousness is not the criterion of relevancy. -
Iji’As defined by Greenleaf (Sec.. 1), the word “evidence” in its legal acceptation, includes all the. means by which any alleged matter of fact, the truth of which *643is submitted to investigation, .is established- or ...disproved. ' ”
In this case, the .matter under investigation ,.>yas whether the ^automobile ran . into the team -and wagon. This, as the court properly holds, was the issue tendered by the. plaintiff and accepted by the defendant. .And anything which tended neither to prove, nor to, disprove-that the automobile ran into the .team, ¡and; wagon isyas not evidence and not entitled to go .to the jury. ...
Chamberlayne (Sec. 4), says that evidence covers all the facts from which an inference may logically be drawn as. to the existence of a fact under investigation. But no inference that the automobile ran into the team, and wagon could be drawn from the fact that the. plaintiff 'and her husband signalled the driver thereof..
As to the relevancy of evidence, Chamberlayne (Sec.. 59) says: ‘ ‘ The law furnishes no test of relevancy.. For this, it tacitly refers to logic and general experience.” As a proposition of logic, can it be. contended that-evidence of signals given proves or tends, to, prove, that--the automobile ran into the team and wagon? ,, - -.-¡<:
But the court says this evidence was. admissible us a res gestae fact. If the fact of signals- given is a. res gestae fact, it could only be termed- such because it was contemporaneous with the fact in issue,- i. e., that .-the automobile ran into the team and wagon. But contemporaneousness is not the test of relevancy. On the contrary, a fact is not a res gestae fact unless it be relevant. ' .
“In the American view, every relevant- fact ■ is ipso facto part of the res gestae. This test is universaL-.So well settled has this habit of treating the subject become that not only is it said of every relevant fact .that it. is a part of the res gestae, but the statement is frequently reversed, and the negative form of the assertion employed,, it being said of any fact deemed irrelevant, that it is not part of the res gestae, or perhaps, that.it is no-part of the res gestae. It may fairly be said-therefore that res gestae and relevant are equivalent expressions in the usage of the American states. adopting the extended scope of the phrase.” Chamberlayne - on Evidence, Section 2586,
, It is said by the court that the evidence,,of..,signals given was admissible because illustrative and explanatory of the nature of the acts of the. driver of the machine; but how the matter was illuminated ^thereby I *644um unable to understand. The plaintiff charged that the automobile collided with the team and wagon; and defendant did not by its answer admit such collision and attempt to excuse itself therefor. So, under the pleadings, if the automobile did collide with the team .and wagon, on a straight stretch of public highway, in '.broad daylight, that act was negligence per se (if the ■driver of the team was without fault), and it needed no illustration and no proof of negligent conduct other than the fact of collision.
As the court says in its opinion: “The appellee specifically alleged that the injuries were caused by the driver of the automobile negligently driving the machine into, upon and against the team and wagon in which appellee was riding and thereby overturning the wagon and throwing her to- the ground. If the automobile was not driven into, upon or against the team and wagon and thereby causing it to overturn, it would be immaterial as to what rate óf speed it was traveling, or whether under control or not, or whether the driver was exercising ordinary care to prevent injury to any one upon the road, because all of these failures of duty upon his part would have resulted in no harm to appellee.”
The only matter which the evidence of signals could serve to illustrate or explain was the fact of knowledge upon the part of the driver of the automobile, that appellee and her husband were approaching, and the law ■charges him with knowledge of that fact whether he had it or not.
Therefore I believe that the evidence of signals given was not relevant, and that its explanatory character was not of such probative value as to justify its admission, ■conveying as it did an indirect imputation of a negligent act not pleaded or relied upon.
I would not be understood as contending that this evidence could not have been rendered competent by proper pleadings presenting a different issue than that joined herein, for instance the issue submitted to the jury by the instruction which the court concedes is erroneous. But upon the issue joined, such evidence was not relevant.
The citation from McLeod v. Ginther, copied in the opinion of the court, presents the rule I am contending for, i. e., that declarations made at the time the main fact under consideration takes place and which illustrates its character, are admissible. But does this 'evi*645deuce of signals illustrate the fact of whether or not the automobile struck the mules?
The court quotes with approval in the case of McLeod v. Ginther, the following excerpt from Starkie on Evidence: “If the declaration has no tendency to illustrate the question except as a mere abstract statement detached from any particular fact in dispute * * * it is not admissible. ’ ’ And this rule, as I view it, is applicable to the evidence of the signals, in the case at bar.
Nor is the argument of the court, as I conceive the questions here involved, aided by the illustrative example, i. e., that if one should sue another for negligently wounding him with a gun, evidence of the fact that the wounded plaintiff had requested the defendant a few seconds prior to the shooting, to be careful in handling "the weapon.
If in such an action, the defendant by answer should deny that he shot the plaintiff, what would be the probative value of evidence of such a request? Would it tend to prove or to disprove that defendant shot plaintiff, or that plaintiff was or was not shot?
It may be conceded that if the defendant by answer were to admit that he shot the plaintiff, but should plead that the shooting was the result of an unavoidable accident, evidence of such an admonition to be careful in handling it, would be admissible; but the defendant denying the shooting absolutely, I fail to see what the evidence of the admonition would illustrate or explain, ■or what probative value such evidence would possess.
Believing as I do that the evidence of the signals given was irrelevant, the question presents itself as to whether it was prejudicial to the appellant’s substantial rights to admit it to the jury. “A growing tendency has been manifested by courts of last resort not to regard as prejudicial error the receipt of such (irrelevant) evidence.” 16 Cyc., 1114.
But, in this case, the effect of the irrelevant evidence :as to signals given, was incontestably to cast upon the driver of the automobile an imputation of possible wrong-doing in failing to bring the machine to a stop when so signalled, and the claim of plaintiff of right to recover herein is not based thereon.
The court in its opinion recognizes that the rule is well settled that a plaintiff in an action for personal injuries caused by the negligent act of the defendant, cannot avail himself of acts of negligence other than *646those charged in the .petition, where he has specified in his petition the negligent acts relied on ; as. the; basis-of his claim of right to recover.
And, where the effect of irrelevant evidence is to-convey to the jury a suggestion of possible, wroiig-doingby way of acts other than those relied on by the plaintiff in the specifications of negligence charged in the; petition, prejudice must inevitably result.
In Greer v. L. & N., 94 Ky., 169, the plaintiff, a railroad brakeman, was directed by the conductor to uncouple two cars from a train which was backing in on a track. He found the coupling apparatus defective, and walked alongside the moving train while engaged in an effort to disengage the coupler, and finally he. got inside the rails. After taking a step or two, a splinter of steel on the guard rail stuck in the toe of his shoe; he was thrown to the ground, and the car ran over his. leg. While this was occurring the engineer had increased the speed of the train. In his petition he charged only that the defendant had negligently driven its train over and upon his leg. Upon the trial, witnesses were permitted to testify over defendant’s objection that the coupling apparatus was defective and the guard rail, in like condition.
In reversing the judgment, because of the admission of this evidence, the court said:
“This testimony was objected to by the defendant, and we think the objection should have been sustained.. These circumstances, if regarded as a mere matter of detail, or as incidents of the transaction, might not,- have been objectionable, as it is hardly possible to detail the occurrence without stating all the conditions and surroundings as they existed .at the time. But witnesses, were introduced solely on these matters, and for the express purpose of making them the basis of a claim for damages. This was not proper under the.pleadings.. The unsafe or defective - condition of the track, or any portion, of the train’s make-up, or the sprained .condition of the plaintiff’s arm, was not the 'subject matter of inquiry. These defects were.not alleged as grounds of complaint or as matters of negligence. Nor are they so connected or interwoven in any way with the act of driving or operating . ..the train — the only negligence-charged in the petition — as to be the proper subject of testimony. That, its introduction was prejudicial-'‘to the ■ defendant is apparent; . .'indeed,vihe*647argument of plaintiff’s counsel in this court consists largely in denouncing the negligence of defendant, as shown by the unsafe track and the crooked pin. What must have been his appeal to the jury?”
In the case at bar, it was easily possible to have shown the negligent act pleaded, i. e., that the automobile struck the team and wagon, without showing that the signals were given. The signals were not so interwoven or connected with the act of collision as to render it.impossible to detail the one without the other; and, tending as it <Jid, to convey to the jury the covert suggestion of negligence in respects other than that pleaded and relied upon as the basis of the claim of right to recover, the evidence of -the signals was manifestly prejudicial to the defendant.
I am fortified in this view by the fact that this evidence on the first trial was permitted to go to the jury, resulting in • a verdict for $2,500, while on the second trial it was excluded from the jury, resulting in a verdict for the defendant, and on' the third trial it was again'permitted to go to the jury, resulting in a verdict for $2,650.
The' instructions on all three trials were identical. And it may be further remarked that the driver of the machine testified that he did not drive it within three feet of the mules or wagon; and that he, as well as a ■disinterested bystander, testified that he saw no marks of injury on the mule, although plaintiff testified that the shoulder of the mule was lacerated by the impact of the machine.
In. the light of these facts, I am constrained to believe that the covert suggestion of negligent operation ■of the machine -in failing to stop, conveyed by this testimony of 'signals given, was- the cause, of the verdict- on the fir.st and third- trials, in favor of the plaintiff. Believing "this, the conclusion is irresistible that the irrelevant testimony of signals given, was prejudicial to the substantial'fights'of the appellant. With this evidence excluded, the appellant fairly won a' verdict, on the second tribal, even under the handicap of instructions which this''.' court' holds ' were prejudicial to its substantial rights.'
. In this connection, it may be remarked that the embarrassment. occasioned by the attempt to recover upon tb° theory of an act of negligence other than that re*648lied úpon and charged in the petition, was exhibited when the court came to instruct the jury.
Instruction No. 1 (copied in the opinion, supra), permitted a recovery by the plaintiff even though the jury did not believe from the evidence that the automobile struck the mules and overturned the wagon as charged in the petition; and with such an instruction, and with evidence admitted of signals given and a failure to stop, it is easy to understand how the jury found for the plaintiff, even though the weight of the evidence did show that there was no actual collision, but that the mules became frightened and swerved to one side, causing the wagon to be overturned.
This same embarrassment, occasioned by an attempt to recover upon a ground of negligence not pleaded, is evidenced by the refusal of the trial court to give the instruction asked for by defendant, directing the jury to find for it if they believed from the evidence that the automobile did not run into or against the team and wagon with such force and violence as to cause it to be overturned.
Because the instruction did not follow the petition-in respect of the acts of negligence asserted as the basis of the claim of right to recover, this court is reversing the judgment, and in this I concur; but I further contend that, as the record clearly shows that the. trial court set aside the second verdict because of a belief that it was error to exclude the evidence of signals, given, when in law such action was not erroneous (the evidence being irrelevant), the second judgment should be reinstated.
The rule is well settled that where the lower court grants a new trial because of a view of the law of the case which is not sustained by this court, the order wilL be set aside and judgment entered on the former ver-' diet. Crowley v. L. & N., 21 R., 1434, 55 S. W., 434; Richards v. L. & N., 20 R., 1478, 49 S. W., 419; Perkins v. Ogilvie, 148 Ky., 309, 146 S. W., 735; Meek v. Patton, 12 R., 796; Anderson v. Republic Iron & Steel Company, 107 S. W., 220, 32 R., 723; Nolan’s Admr. v. Standard Sanitary Mfg. Co., 111 S. W., 290.
The lower court having -set aside the second verdict because he excluded the evidence of signals, when in law such evidence was (as I believe) irrelevant and his action therefore erroneous, I contend that the second judgment should be reinstated; and for these reasons, I dissent from the opinion of the court.