ing on of Federal fiscal operations. There is none apparently between such operations and the business of settling estates or acting as a trustee of bondholders. This being so, there is in the legislation a direct invasion of the sovereignty of the State which controls not only the devolution of estates of deceased persons and the conducting of private business within the State, but as well the creation of corporations and the qualifications and duties of such as may engage in the business of acting as trustees, executors, and administrators. Such an invasion I think the court may declare and may prevent by its order operating upon the offending agency. I concur, therefore, in the conclusion arrived at by Mr. Justice BROOKE. STONE, C. J., and KUHN, BIRD, STEERE, and PERSON, JJ., concurred with OSTRANDER, J. MOORE, J. I think the writ ought to be granted for the last reason stated by Justice OSTRANDER. CHAPMAN v. UNITED STATES EXPRESS CO. 1. MASTER AND SERVANT-FEDERAL CARRIERS LIABILTY ACT-NEG LIGENCE-INTERSTATE COMMERCE. Where defendant express company was doing an interstate commerce business in which its express messenger was engaged at the time of his injury that occurred by his falling from a baggage car because his co-laborer had removed the truck they had been using, as plaintiff claimed, he was entitled to recover, if the jury found the facts to be as he contended, and whether or not the fellow servant removed the truck was a question for the jury. 35 U. S. Stat. 65, U. S. Comp. Stat. 1913, § 8658. 2. SAME CONTRIBUTORY NEGLIGENCE-PROXIMATE CAUSE. Under the Federal act defendant was not discharged from liability on the ground of decedent's contributory negli gence in failing to look before stepping down from the baggage car, although his negligence was the proximate cause of the injury: the negligence of the decedent could only be considered in reduction of defendant's liability. 3. SAME-RISKS ASSUMED. He did not assume the risk of the negligence of his fellow servant in removing the truck without notice to decedent. Error to Saginaw; Gage, J. Submitted June 21, 1916. (Docket No. 73.) Decided September 26, 1916. Case by Albert H. Chapman against the United States Express Company for personal injuries. Upon the death of plaintiff the suit was revived in the name of Mabel D. Chapman, administratrix of decedent's estate. Judgment for defendant upon a verdict directed by the court. Plaintiff brings error. Reversed. Purcell & Travers (George W. Weadock, of counsel), for appellant. Wilson & Johnson, for appellee. KUHN, J. The plaintiff died on March 14, 1914, from injuries which he received upon October 16, 1912, while in the employ of the United States Express Company, the defendant herein. This action, instituted by him in his lifetime, was revived after his death in the name of his widow as administratrix of his estate. The defendant was, at the time of the accident, so far as this case is concerned, a common carrier by railroad engaged in interstate commerce within the intent and meaning of the Federal employers' liability act of 1908 (chapter 149, 35 U. S. Stat. 65, U. S. Comp. Stat. 1913, §§ 8657-8665). It was conceded at the trial that the express merchandise handled at the time of the accident by the deceased was in a large part interstate commerce, that the Federal act controlled, and that a recovery by the plaintiff, if at all, must be by virtue of said act. The following facts appeared, or might reasonably be inferred, from the evidence most favorably to the plaintiff, in which light they must be construed in view of a directed verdict for the defendant: The deceased was an express messenger on the Pere Marquette Railway, operating between Bay City and Detroit. At the time he was injured he was about to commence his run from Detroit to Bay City, and the train was due to leave Detroit about 2 o'clock a. m. the morning of the 16th of October. About midnight the deceased and his helper brought up a truck loaded with an iron safe and valuables, and these were placed in the express car; then a truck loaded with bread baskets and general merchandise was brought up, unloaded, and a third truck, loaded with the same kind of merchandise, followed. Among the articles put into the car was one basket of bread, which had been put on the truck by mistake, and which was destined to go on another run. It was taken into the car and left standing there until the other things had been put in their places, and then decedent took hold of one of its handles with the intention and purpose of dragging it back onto the truck, which had been left standing about a foot from the side of the car, and the platform of which was about 10 or 12 inches below the level of the car floor. Chapman, expecting to find the truck where he had left it a few minutes before, stepped off backwards without looking, and, the truck having been moved in the meantime, he fell to the platform, and received severe in juries which finally caused his death. At about the time he fell a man known as "New York Slim," alleged to be in the employ of the defendant company, was seen standing by the handle of the truck, which had been moved a few feet from the car door. It is the claim of the plaintiff that there was at this time, and had been for a long period prior thereto, a practice and custom prevailing among the porters and messengers that when a truck was before a car door as this one was, that the truck was not subject to removal without the consent of the person who was in the car. At the close of plaintiff's case a motion for a directed verdict was made by the defendant's counsel, which was denied. Subsequently, and at the close of all the proofs, defendant renewed the motion, and the trial judge thereupon directed a verdict for the defendant. The sole questions argued in the briefs of counsel relate to the alleged error of the court in directing a verdict for the defendant, and the ruling out by the trial judge of certain evidence claimed to be admissible as part of the res gestæ. This ruling will be first considered. The deposition of Chapman de bene esse was taken about two months before the trial, and he testified that after he had fallen out of the car "I hollered, "Who pushed the truck?' and the baggageman said, 'Your own man did.' It was objected to as being hearsay evidence, which objection was sustained by the trial court. It is claimed by counsel for the plaintiff that this evidence should have been admitted as part of the res gestæ. To this, however, we cannot agree for the reason that the answer of the baggageman which was made in reply to a question cannot be said to have been spontaneous, and therefore lacked one of the essential requirements to bring it within the exception to the hear 192 Mich.-42. say rule. See White v. City of Marquette, 140 Mich. 310 (103 N. W. 698); Bernard v. Paper Box Co., 170 Mich. 238 (136 N. W. 374, 42 L. R. A. [N. S.] 930); Rogers v. Railway Co., 187 Mich. 490. The case of Smith v. Railway, 155 Mich. 466 (119 N. W. 640), which it is contended is decisive of this question, did not present a parallel situation, for there the exclamation in question was clearly a spontaneous exclamation; and it was said by the court: "It was an instinctive exclamation, made immediately as the car started, called out by the apprehended danger of an accident to his wife, by reason of the starting of the car. 24 Am. & Eng. Enc. Law (2d Ed.), pp. 685, 686, and authorities cited." The circuit judge was clearly right in excluding this testimony. The following are pertinent sections of the Federal employers' liability act, fixing the liability upon which plaintiff bases his case: * "SEC. 2. That every common carrier by railroad * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in any. of said jurisdictions, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier. * ** * * "SEC. 3. That in all actions hereafter brought against any such common carrier by railroad under or by virtue of the provisions of this act to recover damages, for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. * Defendant's counsel urged to the trial court, and now argue in their brief, that there was no evidence of any negligence on the part of the defendant, that |