Waldele v. N. Y. Central, etc.. R. Co., 95 N. Y.. 274. It cannot be that res gesta, had no connection with it, and were purely narrative. It has been well said, that res gesta must be a res gesta that has something to do with the case, and then the declaration must have something to do with the res gesta. said that these declarations were in such manner connected with the res gesta as to constitute one transaction so that they and the res gesta were parts of the same transaction. They were not made under such circumstances that they are in any way confirmed by the res gesta, and they had no relation to what was then present, or had just gone by. Suppose the intestate had been found at that point with a mortal wound freshly inflicted by some person; and he had charged that an individual, naming him, had thirty minutes before caused the wound; would that declaration have been competent upon the trial of the person thus charged with the murder? Clearly not, within the principles laid down in the cases which I have cited. Suppose in this case the person had been found there with a wound upon his head; and he had stated that the engineer upon one of these engines had struck him, as the engine passed, and the engineer had been upon trial for the offense; would the declaration have been competent? It makes no difference that the intestate had died, and could not therefore be called as a witness. If these declarations were competent, they would have been no less competent if he had survived and brought the action himself, and had been a witness upon the trial. Suppose the engineer upon the engine which struck the defendant had, at the precise time when these declarations were made, also made declarations either favorable or unfavorable to the defendant, could they have been given in evidence as a part of the res gesta? In view of the authorities which I have cited, that will not be claimed, and yet if these declarations were competent, those made at the same time by the engineer would have been competent; and this illustrates, too, how important it is that a correct rule upon this subject should be laid down in this case. This evidence cannot be received upon the theory that there is a very strong probability that the declarations made by the intestate were true. The probability would have been equally strong if they had been made several hours later when he was Waldele v. N. Y. Central, etc., R. Co., 95 N. Y., 274. removed to the hospital. The probability is that as he neared his death, he would have told the truth, if he said anything about it. The same may be said of many statements not under oath. They are frequently made under such circumstances as entitle them to very great, and frequently to implicit confidence; and yet they do not answer the requirements of the law-that a party prosecuted shall be confronted with the witnesses, shall have an opportunity of cross-examination, and that the evidence against him shall be given under the test and sanction of a solemn oath. Declarations which are received as part of the res gesta are to some extent a departure from or an exception to the general rule; and when they are so far separated from the act which they are alleged to characterize that they are not part of that fact or interwoven into it by the surrounding circumstances so as to receive credit from it and from the surrounding circumstances, they are no better than any other unsworn statements made under any other circumstance. They then depend entirely upon the credit of the persons who testify to them, and hence are of no more value as evidence in a legal proceeding than the unsworn declarations of a person under any other circumstances. Even dying declarations are not received in civil actions unless part of the res gesta. Such declarations made in the immediate presence of death, under the most solemn circumstances, when all motive to pervert the truth may be supposed to have ceased to operate, are received only in trials for homicide of the declarant in cases where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declarations. It is said that the reasons for thus restricting the rule may be that credit is not in all cases due to the declarations of a dying person, for his body may survive the powers of his mind; or his recollection, if his senses are not impaired, may not be perfect; or for the sake of ease, and to be rid of the importunity and annoyance of those around him may say, or seem to say, whatever they may choose to suggest. The rule admitting dying declarations as thus restricted stands only upon the ground of the public necessity of preserving the lives of the community by bringing man-slayers to justice (Greenl. on Ev., § 156). Waldele v. N. Y. Central, etc., R. Co., 95 N. Y., 274. There is no middle ground for receiving declarations of this character—that is, they must be received either as dying declarations or as declarations forming part of the res gesta. But it is said that although this evidence may have been incompetent to show how the accident happened, it was competent to explain the condition of the intestate at the time he made the declarations. It is clear, however, that they were not received for that purpose. There was no dispute about his condition. It was not questioned that he was badly mangled and bruised, and that his injuries were received upon the defendant's railroad by contact with one of its engines; and so far as the declarations tended to show that he was simply hit by an engine, and received his injuries in that way, they were wholly unnecessary and immaterial. The sole point of the evidence was to show that he approached the track, waited for a long train to pass, and then in attempting to cross the track, was struck by an engine backing in the same direction, thus making a question for the jury as to the contributory negligence on his part. For that purpose the evidence was incompetent, and that was the sole purpose, manifestly, for which it was offered or received. Suppose the intestate had been found there with a mortal stab inflicted half an hour before, and he had said, "I am stabbed, John Doe did it!" and the evidence had been objected to and received, would it have been an answer to say that it was competent to show his then present condition, and that the whole evidence should not, therefore, have been excluded? The stab would have been apparent, and the declarations wholly immaterial and unnecessary to show it, and the sole purpose and effect of the evidence would have been to show who the murderer was. So here the evidence was given for the sole purpose of showing what took place at the time the intestate was injured, and not for the purpose of characterizing his condition at the time he spoke. We are, therefore, of opinion that an important rule of evidence was violated in receiving these declarations, and that upon that ground the judgment should be reversed and a new trial granted. All the judges concurred, except RAPALLO, J., not voting, and DANFORTH, J., not sitting. Judgment reversed. Davidson v. Cornell, 132 N. Y., 228. DAVIDSON v. CORNELL. New York Court of Appeals, 1892. [Reported in 132 N. Y., 228.] In an action for personal injuries, declarations of the plaintiff as to his injuries, to be proved at the trial must have related to present and not past pain and suffering. In an action for personal injuries, declarations of plaintiff to his physician consisting not of exclamations of present pain and suffering, but of statements of the effect upon him of the injury and the consequences which had followed from the time it occurred, a period of nearly fifteen months,-Held, hearsay, the admission of which was error. Such evidence is not made competent by being corroborated by plaintiff's own testimony at the trial. Statements expressive of present condition are allowed in evidence only when made to a physician for the purpose of treatment by him. It seems that non-expert testimony as to involuntary exclamations of present pain is competent. Plaintiff sued for damages sustained while in defendants' employ, aiding them in building an elevated railroad. The structure gave way and fell to the ground while plaintiff was working upon it, thus casting plaintiff to the street below and severely injuring him. At the trial Dr. Corey, a medical witness for plaintiff, testified that he examined plaintiff more than a year after the injury and formed an opinion that plaintiff's spinal cord was injured. The symptoms were want of sensation in the lower extremities, tenderness over part of the spine and loss of sexual power; adding: "of course, my opinion in that respect must rest upon his declarations." [which the witness proceeded to repeat.] .... The court denied a motion to strike out the evidence, but said that it would be stricken out unless plaintiff himself testified to the fact. Plaintiff afterward testified to the existence of the facts indicated by the medical witness. Plaintiff had a verdict for $2,500. The City Court of Brooklyn at General Term affirmed the judgment, holding, that this was a proper dispositon of the Davidson v. Cornell, 132 N. Y., 228. objection, and preserved all defendants' right; these statements of plaintiff were incidental to the medical examination, and contributed to its completness and efficiency. Although similar statements made by a layman have, heretofore, been held inadmissible on the ground in part, that they were hearsay, and in part, that it afforded an opportunity to unduly exaggerate the injuries complained of, these objections, however, were removed by the plaintiff's testimony that the statements made by him to Dr. Corey were true. The Court of Appeals reversed the judgment. BRADLEY, J. [after passing upon other questions]: As a general rule, declarations made out of court by a party are not admissible as evidence in his behalf. But his statements to his attending physician of the nature of the symptoms of his malady or suffering have quite uniformly been held admissible, and from necessity they were formerly deemed competent when made to persons other than medical attendants under some circumstances. (Caldwell v. Murphy, 11 N. Y., 416; Werely v. Persons, 28 id., 344; Matteson v. N. Y. C. R. R. Co., 35 id., 491.) But since the Code permits parties to make their statements under oath as witnesses, that necessity in this state has ceased to exist, and, as a rule, declarations made to persons other than the medical attendant of the party, are not admissible as evidence. (Reed v. N. Y. C. R. R. Co., 45 N. Y., 574; Roche v. Brooklyn City, etc., R. R. Co., 105 id., 294.) It was, however, held in Hagenlocher v. C. I. & B. R. R. Co. (99 N.Y., 136), that the evidence of a non-medical witness, that the plaintiff (who had received an injury) manifested pain by screaming, was held competent, because it was apparently involuntary and corroborated by what appeared to be her condition. The rule of admissibility of statements made to physicians by persons who have been physically injured, or are suffering from disease, is not an unqualified one. They must relate to present and not past pain and suffering. (Towle v. Blake, 48 N. H., 92.) And it has been held that their declarations, after controversy had arisen, made at a medical examination then had for the purpose of preparing evidence, and not for medical treatment, were in |