after stating the facts, delivered the opinion.
The single witness called was a switchman working in company with the deceased. He was called for the plaintiff. The defendant called no *1009witnesses, but obtained a verdict upon the instruction of the court at the close of the plaintiff’s testimony. The case must be considered, for the purposes of the error alleged, as if the defendant were offering to submit the case finally, without further proof.
Whether the car had actually been inspected; whether upon such inspection the defect in the hand hold would have been apparent; whether such defect was the result of a “cornering of the car” subsequent to the inspection, were all questions within the peculiar knowledge and possession of the defendant; and defendant’s failure to call witnesses to those questions is'something that might be rightly taken into consideration by a jury in arriving at a verdict.
Whether the grab iron was put there solely for use of switchmen in coupling the cars, and was not to be used in alighting from the cars; and whether this switchman had any instruction to that effect, either by rule or otherwise, were also questions within the peculiar knowledge and possession of the defendant; and in the absence of any testimony by defendant, presented matter that a jury could rightly take into consideration. Indeed the situation, to the extent it was disclosed, and in view of what was not disclosed, was such as would have justified a jury in finding that the deceased had a right to avail himself of this grab iron in the manner, and for the purposes shown, and that the defect through which he received his injuries was a danger that he ought not to have been exposed to; at least the situation is one so speaking for itself, that the case ought to have gone to the jury, either with or without further testimony, as the defendant might choose, for the jury’s determination.
.What has already been said results in a reversal of the judgment of the court below. We think it proper, however, to add, for the guidanee of the court on another trial (error having been duly assigned thereon) that in our judgment the declaration of the deceased, made at the time of his fall from the car, respecting the cause of his fall, is a part of the res gestae, and should have been admitted; as also the evidence relating to the extent of deceased’s contributions to the support of his wife and family, immediately prior to the time of his injury.
The judgment of the Circuit Court will be reversed with instructions to grant a new trial.