(dissenting.)
I dissent. On my understanding of the evidence what the deceased said to his sister and mother was not admissible as res gestae. It is unlikely that the conversations were had as soon after the accident as is claimed; but granting that they were, what tbe decedent said, as I understand the evidence, was narrative and lacked the essential element of spontaneity that makes self-favoring statements admissible as res gestae. Our decisions are in harmony with the view expressed by Dean Wigmore to the effect that the question of admissibility is largely for the trial court in the exercise of a sound discretion and that time, though important, is not an arbitrary or always determining limit. Wigmore, -Ev. § 1745, et seq. Still, the hearsay statements must be characterized by spontaneity arising from the transaction and accrediting them, and they must attend and illustrate the main fact under investigation.
In Roach v. Great Northern Ry. Co. 183 Minn. 257, 158 N. W. 232, the conversation was within 30 minutes or “perhaps considerably earlier” after the accident. The decedent in that case had one conversation within 5 minutes and this was conceded to be admissible. He closed it with the remark: “Don’t ask me any more but go and get me a doctor.” He was suffering intense pain, and was crying for relief. The case of Lambrecht v. Schreyer, 129 Minn. 271, 152 N. W. 645, L. R. A. 1915E, 812, involved the typical spontaneous exclamation immediately attendant upon the transaction which it explained. In Meyer v. Travelers Ins. Co. 130 Minn. 242, 153 N. W. 523, the statement held admissible was made within 2 or 3 minutes after the shooting which was the subject of investigation. In Hyvonen v. Hector Iron Co. 103 Minn. 331, 115 N. W. 167, 123 Am. St. 332, the declaration was within 20 or 25 minutes after the accident, within 5 minutes after the result of it became known, in the presence of its visible effects, amid some excitement, and it was against the interest of the declarant for it constituted a confession of his fault.
If Stopps, the decedent’s fellow trainman, is believed, the decedent asked him to notify his family, confided to him some messages to his wife, told him what doctors he wanted, and asked that Dr. Rogers assist. At the hospital he consulted with Dr. Rogers, and, *150using the doctor’s words, “told me he wanted me there to see if it was necessary for his leg to be amputated.” The statements of the decedent to his sister and his mother were narrative in form and in fact. The decedent was giving an account of a past transaction. Of course they were of probative effect as are hearsay statements generally.
The rule now adopted may work well enough, in some respects may be thought to be the better rule, but it departs from the requirement that spontaneity accompany hearsay to make it res gestae, and puts the self-serving statements of a deceased declarant, when it is thought by the court that he is likely telling the truth about an event that has passed, upon a footing much like those of a deceased declarant admitted when against his interest. Looking at the evidence from a viewpoint liberal to the plaintiff the testimony does not meet the tests of res gestae.
The award of damages is large but I am content to accept the view of the trial court that there should not be a reduction.