Boone v. Oakland Transit Co.

SHAW, J.

This is an action to recover damages for personal injuries to the plaintiff Ollie Boone. The verdict was for the plaintiffs, and judgment was entered thereon. The defendant appeals from an order denying its motion for a new trial. The evidence on behalf of the plaintiff was to the effect that she was a passenger on one of the defendant’s cars, sitting

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on one of the rear open seats of the car on a street in Oakland, and that she wished to get off at Third Avenue; that as the ear left Second Avenue she told the conductor to stop at Third Avenue, and understood him to say that he would; that as the car approached nearly to Third Avenue it slowed down, apparently as if about to stop to enable her to get off; that in anticipation of its stopping she stood up on the step or running-board of the car, holding on to one of the stanchions with her left hand; that the car, instead of stopping, started up very suddenly and unexpectedly, whereby she was thrown to the ground and injured. It cannot be seriously contended that the evidence was not sufficient to justify the verdict. The defendant complains of several rulings of the court, specified as errors of law, which we think are so serious as to demand a reversal of the judgment.

1. Over the objection of the defendant, a witness was allowed to testify that when the car stopped after the accident, and after the conductor had gone from the place where it stopped to the place where the plaintiff lay, and again returned to the car, the witness had a conversation with him, in which he said: “These ladies seem to blame me—seem to think it is my fault.” This was not a part of the

res gestee.

It happened after the accident, and after a sufficient time had elapsed for the defendant to walk almost half a block and back again. It was not even a relation of the facts which caused the accident, but was a mere statement of the opinion of third persons as to who was at fault. Its admission was against all the rules with relation to res

gestee.

(Jones on Evidence, sec. 360;

Lissak

v.