delivered the opinion of the Court:
1. The authorities, though not entirely, are mainly agreed in the statement of the general rule as to when evidence ceases to be objectionable as hearsay and becomes admissible as part of the res gestae. This rule is, that the declarations must be made by a party to the transaction, must grow out of it, serve to illustrate its character, and derive some degree of credit from it. They must be undesigned incidents of the very act in controversy; spontaneous emanations therefrom, and must not have force independent thereof, or be dependent for their effect on the credibility of the person making them.
The learned Wharton, whose authority is invoked on behalf of the appellee, says: “ Their sole distinguishing feature is that they should be the necessary incidents of the litigated act; necessary in this sense, that they are part of the immediate preparations for, or emanations of, such act, and are not produced by the calculated policy of the actors.” 1 Wharton Ev., Sec. 259.
In one of the leading cases relied on by appellee the rule is stated thus, after admitting the difficulty in formulating a rule applicable to all cases: “This much may, however, be safely said, that declarations which were the natural outgrowths of the act or occurrence in litigation, although not *387precisely concurrent in point of time, if they were yet voluntarily and spontaneously made so nearly contemporaneously as to be in the presence of the transaction which they illustrate and explain, and were made under such circumstances as necessarily to exclude the idea of design or deliberation, must, upon the clearest principles of justice, be admissible as part of the act or transaction itself.” Railway Co. v. Buck, 116 Ind., 566.
In passing, it may be said, that in that case the declarations were made by the deceased (whose administrator sued for damages for his injuries) to the conductor of the train immediately after he had pulled him from under the wheels of the car, and while suffering from wounds that caused his death within six hours.
It is quite generally agreed, also, that the declarations need not be made immediately, in point of time, but only so near as, with other circumstances, to show that the declarations were the spontaneous product of the act and illustrative of it only. But they are, on the other hand, not to be admitted when narrative merely of that which has occurred, no matter how near they may be connected in point of time therewith.
The great difficulty to be encountered lies in the application of the rule to the particular facts of each case. As a result, the different applications made in a multitude of cases where the question has arisen, have apparently made variations in, and exceptions to the general rule which they, in the main, profess to follow. It is this conflict of decided cases, and the resultant confusion of the principles of the rule, probably, which led Sir James Stephen to remark that “ the term res gestae seems to have come into use on account of its convenient obscurity.”
It would be an unprofitable task to review all of the cases cited on the briefs of counsel and others which have been examined in the consideration of this case. In every case in which declarations have been admitted as part of the res gestae, we think it will be found that they came either from *388an injured or wounded person, or from the other actor or actors in the transaction. The rule will be found to have been relaxed in cases where the person injured was a child, and made the explanatory statements to the father or mother upon first meeting and while suffering from the injuries received. City of Galveston v. Barbour, 62 Tex., 172; Augusta Factoiy v. Barnes, 72 Ga., 217; or when made by an adult immediately after injury, and while suffering from wounds which shortly produced death, where, superadded to the improbability of designing statements being made in intense suffering, was the shadow of impending death, giving to the words almost the solemnity of a dying declaration. Ins. Co. v. Mosley, 8 Wall., 397; Railway Co. v. Buck, 165 Ind., 566; Leahey v. Cass Ave. &c., Rwy. Co., 97 Mo., 165 ; Elkins v. McKean, 79 Pa. St., 493 ; Entwhistle v. Feighner, 60 Mo., 214; see also I. & G. N. R. R. Co. v. Anderson, 82 Tex., 516. In this last case the court admitted that the rule had been carried too far in that State, and regretted that it felt bound by previous decisions.
Again, in criminal trials, the declarations of the deceased made immediately after the receipt of the mortal wound, giving the name of the slayer and sometimes the circumstances attending the act, have often been admitted. Com. v. M’Pike, 3 Cush., 181; People v. Simpson, 48 Mich., 474; Kirby v. Commonwealth, 77 Va., 681; Hill’s Case, 2 Gratt., 594, and many others that might be cited. Sometimes, also, the declarations have been received where made by persons immediately after being robbed, descriptive of the persons and dress of their assailants. State v. Horan, 32 Minn., 394; State v. Ah Loi, 5 Nev., 99; Lambert v. People, 29 Mich., 71 ; Driscoll v. People, 47 Mich., 413.
In these cases where the rule has been most relaxed, the facts have appealed more or less strongly to the sympathy as being in the interest of justice, either in the redress of private or public wrongs. The rule has always been more strictly observed in cases where the declarations of the agents or employees of a defendant have been sought to be intro*389duced against him; these when admitted have been made very shortly after the transaction, with the evidences of the wreck and damage immediately around, and amid the excitement of trying scenes, as in Hanover R. R. Co. v. Coyle, 55 Pa. St., 396, a very often cited case. See also McLeod v. Ginther, 80 Ky., 399. But in a case where the declaration of the engineer of the wrecked train was made within a short time afterwards, and while at the place, it was held inadmissible, the court saying: “ It is not to be deemed part of the res gestae simply because of the brief period intervening between the accident and the making of the declaration. The fact remains that the occurrence had ended when the declaration in question was made, and the engineer was not in the act of doing anything which could possibly affect it.” V. & M. R. R. v. O’Brien, 119 U. S., 99. See also, Williamson v. Cambridge R. R. Co., 144 Mass., 148 ; Adams v. Hannibal &c., R. R. Co., 74 Mo., 553; Whitaker v. Eighth Ave. R. R., 51 N. Y., 295 ; Railway Co. v. Becker, 128 Ill., 545.
We think that the learned justice who tried this case below erred in the application of the rule to the facts in evidence when he admitted the declarations of the transfer agent as part of the res gestae. If the declarations offered had been made by the conductor of the car whose negligence, according to the plaintiff, caused the injury, the error would not be so clear; but the transfer agent was not an actor in the occurrence, and had nothing to do with it. If it be conceded that he saw the accident and knew its cause— which is the natural inference from his statement, if truly reported — yet it is clear that what he said, though near in point of time, was narrative only of a past transaction. It was not a spontaneous outburst incident to the occurrence or illustrative of any part of it.
This witness was not in the employ of the defendant at the time of the trial. He was in attendance as a witness, and was competent to testify to the cause of the accident, if in fact he did witness it, and knew anything of the cause of *390plaintiff’s injury. He could not be made a witness in this indirect manner.
When it is considered also that this witness ordinarily started the cars himself, and might, therefore, have been interested in exculpating himself from possible blame by inculpating another, the reason for the exclusion of his declaration becomes stronger. Luby v. Hudson R. R. R. Co., 17 N. Y., 133.
The incompetency of this evidence may be illustrated by its consideration from another point of view. Declarations that are strictly part of the res gestae are admissible as well for as against each party to the controversy. Now, let us suppose that the declaration of the agent had been to the effect that plaintiff was negligent in attempting to alight from a moving car, and had been offered on behalf of dedefendant, would it be seriously contended that it ought to have been admitted as part of the res gestae ? We think not.
2. The conclusion that the court erred in admitting the declarations in this case is supported upon another ground equally as satisfactory as those above set forth. The transfer agent, as to this transaction, occupied to the defendant the relation of any other by-stander. Declarations of bystanders, though made amid all the excitement of the moment, have not been held competent in any case similar to this that has come under our observation. It has no element in common with those cases, where, as in riots, unlawful assemblies and conspiracies for such purposes, the cries of the mob or crowd have been held competent as illustrating the motives and explaining the probable purposes of their leaders and inciters, as in Lord George Gordon’s Case, and perhaps others.
In Leakey v. Cass Ave. &c., Rwy. Co., 97 Mo., 165, where che declarations of the injured person were held competent as part of the res gestae, the cries of a woman by-stander made at the time of the injury were excluded. In Detroit & Milwaukee R. R. v. Van Steinberg, 17 Mich., 99, the *391statements of by-standers made at the time the train came in, that the bell was not being rung, nor the whistle blown, in which omissions the charge of culpable negligence was founded, were held incompetent.
In Dwyer v. Continental Ins. Co., 63 Tex., 354, the trial court permitted evidence to be given to the effect that while the fire was raging, out of which the controversy grew, there was “talk of arresting all the clerks for complicity in the fire.” This talk was in the presence' and hearing of the plaintiff Dwyer, who afterwards became the assignee of the policy upon the burned goods, upon which the suit had been brought. The defense was that the goods had been set on fire by the procurement of the insured. The Supreme Court held this to be error, saying: “It was but the statement of what persons said who were present at the fire, which under no known rule of law was admissible. The parties making the declarations were not shown to have been so connected with the transactions, or with the persons whose interests seemed to be affected by them, as to make them admissible as part of the res gestae.”
3. It is insisted on behalf of appellee that the error in admitting this evidence was immaterial, because it could have had no effect, under all the circumstances, upon the jury. We cannot agree to this. The evidence was very equally balanced, and this additional evidence may, in all probability, have been sufficient to turn the scale in favor of the appellee.
4. It is unnecessary to consider the other assignment of error, which presents the question, that the verdict is against the weight of the evidence, for our consideration, either upon its merits, or upon the point whether this court, by the transfer of the appeal from the General Term, succeeds to its recognized power to reverse a judgment upon that ground.
The judgment must be reversed, with costs to the appellant, and the cause remanded for another trial.