Opinion of the Court, per EARL, J. B. Stephen's Digest of the Law of Evidence, 44-51; 2 Burg. 99; 1 Taylor on Ev., §§ 521, 525; Ins. Co. v. Mosely, 8 Wall. 397; Newton v. Ins. Co., 2 Dillon, 154; Jewell v. Jewell, 1 How. [U. S.] 219-232; Comm'sr v. McPike, 3 Cush. 181; Comm'rs v. Hackett, 2 Allen, 136; 14 S. & R. 280-1; 10 Harris [Penn.], 275; 79 Penn. St. 493; R. R. Co. v. Coyle, 55 id. 402; 47 Mo. 240; 57 id. 93; 60 id. 214; Jordan's Case, 25 Gratt.945; Little's Case, id. 923-4; 11 Ga. 622–3–4; 63 N. Y. 190; 21 Alb. L. J. 484; Abbott's Trial Evidence, 587; Greenl. on Ev., § 108; Starkie on Ev., 88, 89; 88 N. Y. 193-5; 80 Ky. 399; Wharton on Ev., § 259; 9 Bing. 340; Stephen's Digest of the Law of Evidence, 44, 51; 25 Eng. C. L. R. 421; Beaver v. Taylor, 1 Wall. 642; Ins. Co. v. Mosely, 8 id. 408; Newton v. Mut. B. L. Ins. Co., 2 Dill. [U. S.] 154; 3 Cush. 181-4; 35 Cal. 49-51; 11 Ga. 622-624; Ga. Stat., § 3773.) An objection and exception on the ground of incompetency raises no question if the evidence is admissible at all. (Oldfield v. R. R., 13 N. Y. 314, 315; Hurt v. R. R., 88 id. 37; Caldwell v. R. R., 11 id. 416; Doyle v. Infirmary, 80 id. 634.) EARL, J. The intestate came to his death from injuries received on defendant's railroad in the city of Rochester, near midnight, July 1, 1876. He was an educated deaf-mute, intelligent, and in possession of all his faculties, except that of speech and hearing. He was familiar with the railroad at the place where he was injured; and was probably attempting to cross the railroad on his way home at the time he was struck by an engine and fatally injured. No one saw the accident; but the theory of the plaintiff is, that as he approached the railroad tracks, a freight train came from the east, and he waited for that to pass, and then started to cross the track and was struck by an engine backing in the same direction at a distance of about fifty feet in the rear of the train. The manner of the accident, and whether it was caused solely by the negligence of the defendant, without any contributory negligence on the part of the intestate, were matters of controversy Opinion of the Court, per EARL, J. at the trial. The evidence to support the theory of the plaintiff was all circumstantial, except declarations of the intestate which were read in evidence. Shortly after the passage of the train and the engine, the groans of the intestate were heard, and he was found lying. upon the southerly or outer track of the railroad, about fifteen feet from the sidewalk, badly bruised and mangled. He was soon removed to the sidewalk, and afterward to the hospital, where he died in about three hours. After he was removed to the sidewalk, his brother, also a deaf-mute, was sent for; and about thirty minutes after the accident, he there obtained from him, by signs, the declarations the reception of which in evidence are complained of as error. He was produced by plaintiff as a witness and was asked; "what did he tell you?" To this defendant's counsel objected, on the grounds "(1) that the declarations of the deceased are incompetent, (2) that they are no part of the res gesta, (3) that whatever the conversation may have been, it took place at a time considerably subsequent to the time of the injury, at a place other than where the injury occurred, (4) that the evidence is inadmissible for any purpose." The court overruled the objections, and the defendant's counsel excepted. The counsel further objected to the reception of the evidence, "upon the ground that the declarations of the deceased are not competent for the purpose of establishing either negligence on the part of the defendant, or absence of negligence on the part of the deceased." The court overruled the objection, and defendant's counsel again excepted. The witness then answered: "John said he got hit! John said there was a long train, that he stood waiting for it to go, and an engine followed and struck him." The counsel in objecting to this evidence, and the court in ruling upon the objections, must have known what evidence was sought to be elicited by the question, as the case had before been tried, and the same evidence had been given. (19 Hun, 69.) It is not disputed that this evidence was quite material, and we cannot say that it was not very damaging to the defendant upon a vital issue. Was it competent? We think not. Opinion of the Court, per EARL, J. throw any light upon it. account of a transaction They are The claim that the declarations can be treated as part of the res gesta is not supported by authority in this State. The res gesta, speaking generally, was the accident. These declarations were no part of that were not made at the same time, or so nearly contemporaneous with it as to characterize it, or They are purely narrative, giving an not partly past, but wholly past and completed. They depend for their truth wholly upon the) accuracy and reliability of the deceased, and the veracity of the witness who testified to them. Nothing was then transpiring or evident to any witness which could confirm the declarations or by which upon cross examination of the witness testifying, or by the examination of other witnesses, the truth of the declarations could be tested. It is not easy always to determine when declarations may be received as part of a res gesta, and the cases upon this subject in this country and in England are not always in harmony. The case of Commonwealth v. McPike (3 Cushing, 181), and Insurance Company v. Mosley (8 Wall. 397), are extreme cases upon one side, and would justify the reception of these declarations. The case of Regina v. Bedingfield (14 Cox's Cr. Cases, 341), is an extreme case upon the other side, and goes much further than would be needed to justify the exclusion of these declarations. That case was decided by Lord Chief Justice COCKBURN, after consulting with FIELD and MANISTY, JJ., and aroused much discussion and criticism in England. (Bedingfield's Case, 14 Am. Law Review, 817; 15 id. 71.) The rule as to res gesta laid down in Commonwealth v. McPike, has since been limited, and very properly applied in other cases in that State. In Lund v. Tyngsborough (9 Cush. 36), in view of the frequent recurrence of questions in regard to the admission of declarations claimed to be part of some res gesta, the court undertook to set forth and illustrate with some particularity the principles and tests by which such questions must be determined, and among other things said: "When the act of a party may be given in evidence, his declarations made at the time, and calculated to elucidate and ex Opinion of the Court, per EARL, J. plain the character and quality of the act, and so connected with it as to constitute one transaction, and so as to derive credit from the act itself, are admissible in evidence. The credit which the act or fact gives to the accompanying declarations as a part of the transaction, and the tendency of the contemporary declarations as a part of the transaction to explain the particular fact distinguish this class of declarations from mere hearsay;" and further: "Such a declaration derives credit and importance as forming a part of the transaction itself, and is included in the surrounding circumstances which may always be given in evidence to the jury with the principal fact. There~ must be a main or principal fact or transaction; and only such declarations are admissible as grow out of the principal transaction, illustrate its character, are contemporary with it, and derive some degree of credit from it." In Commonwealth v. Hackett (2 Allen, 136), upon a trial for murder, a witness testified that, at the moment the fatal stabs were given, he heard the victim cry out "I am stabbed," and he at once went to him and reached him within twenty seconds after that, and then heard him say "I am stabbed I am gone Dan Hackett has stabbed me." This evidence was held competent as part of the res gesta. BIGELOW, Ch. J., speaking of this evidence, said: "If it was a narrative statement, wholly unconnected with any transaction or principal fact, it would be clearly inadmissible. But such was not its character. It was uttered. immediately after the alleged homicidal act, in the hearing of a person who was present when the mortal stroke was given, who heard the first words uttered by the deceased, and who went to him after so brief an interval of time that the declarations or exclamations of the deceased may fairly be deemed a part of the same sentence as that which followed instantly, after the stab with the knife was inflicted. It was not, therefore, an abstract or narrative statement of a past occurrence, depending for its force and effect solely on the credit of the deceased, unsupported by any principal fact, and receiving no credit or significance from the accompanying circumstances. But it was an exclamation or statement contemporary with the Opinion of the Court, per EARL, J. same transaction, forming a natural and material part of it, and competent as being original evidence in the nature of res gesta." The learned judge also said that the rule which renders res gesta competent has been often loosely administered by courts of justice so as to admit evidence of a dangerous and doubtful character; and that the tendency of recent decisions has been to restrict within the most narrow limits this species of testimony; and that that court was disposed to apply the rule strictly, and to exclude every thing which did not clearly come within its just and proper limitations. In these cases (the last two) I think the rule under consideration was correctly laid down and applied, and properly defined and limited. In Rockwell v. Taylor (41 Conn. 55), the rule was laid down thus: "To make declarations on this ground admissible, they must not have been mere narratives of past occurrences, but must have been made at the time of the act done which they are supposed to characterize, and have been well calculated to unfold the nature and quality of the acts they were intended to explain; and to so harmonize with them as to constitute a single transaction." In Hanover Railroad Company v. Coyle (55 Penn. St. 396), the action was against a railroad company for injuring the plaintiff by negligence; and the trial court admitted declarations of the engineer by whose negligence the plaintiff was injured, made at the time of the injury as part of the res gesta; and it was held that they were properly admitted. AGNEW, J., writing the opinion and speaking of the declaration of the engineer, said: "It was made at the time of the accident, in view of goods strewn along the road by the breaking of the boxes; and seems to have grown directly out of and immediately after the happening of the fact. The negligence complained of being that of the engineer himself, we cannot say that his declarations, made upon the spot, at the time, and in view of the effects of his conduct, are not evidence against the company as a part of the very transaction itself." Without further calling attention to cases outside of this State, I will now refer to a few cases decided by this court in further illustration of this rule. In Moore v. Meacham (10 |