"The question of the admissibility of statements as a part of the res gestae is largely determined by the facts and circumstances of each case, and should in a great measure be left to the determination of the trial court." Marland Refining Co. v. Snider, 120 Okla. 116, 251 P. 989. 2.
We are of the opinion, and hold, that the evidence, though circumstantial, was sufficient to submit the issue of contributory negligence to the jury. Marland Refining Co. v. Snider, 120 Okla. 116, 251 P. 989. 3. Plaintiff's propositions 4 to 20, both inclusive, relate to the alleged error of the court in giving the instructions.
"The question of the admissibility of statements as a part of the res gestae is largely determined by the facts and circumstances of each case, and should in a great measure be left to the determination of the trial court." Smith v. Chicago, R.I. P. Ry. Co., 42 Okla. 577, 142 P. 398; Marland Refg. Co. v. Snider, 120 Okla. 116, 251 P. 989; Standard Accident Ins. Co. v. Baker, 145 Okla. 100, 291 P. 962; Feenberg Supply Co. v. Pierce, 185 Okla. 662, 95 P.2d 640. Objections are raised to a number of the instructions given by the court to the jury, but in our view of the case the instructions are substantially correct.
"The granting of a new trial on the ground of newly discovered evidence rests largely in the discretion of the trial court, and where the trial court overrules said motion, this court will, in the absence of abuse of discretion, affirm the action of the trial court." In the case of Marland Refining Co. v. Snider, 120 Okla. 116, 251 P. 989, it was held: "In determining a motion for new trial on the ground of newly discovered evidence, the trial court is not concluded by the motion and the proof in that proceeding, but it is the duty of the trial court to consider such newly discovered evidence in connection with and in the light of the proceedings had and the evidence produced at the original trial and to consider the credibility of the proposed witness and the probable effect of such newly discovered evidence, if a new trial should be granted; and unless it appears that the newly discovered evidence would, with reasonably probability, compel a different verdict, the motion should be denied."
Braniff v. McPherren, 177 Okla. 292, 58 P.2d 871. And essential facts may be proved by circumstantial evidence, in which event it is not necessary that proof rise to a degree of certainty which will exclude every other reasonable conclusion than the one reached by the jury. Marland Refg. Co. v. Snider, 120 Okla. 116, 251 P. 989. See, also, Ramsey Oil Co. v. Dunbar, 172 Okla. 571, 46 P.2d 535; State Bank of Seneca, Mo., v. Miller, 171 Okla. 253, 42 P.2d 834. Applying the above tests, we hold there is sufficient competent evidence to sustain the finding of the jury that salt water from Bitter creek entered and polluted the water in plaintiff's well. Though the above analysis of the evidence and conclusion thereon applies equally to all defendants, it is unnecessary, insofar as defendants Cities Service Gas Company and Cities Service Oil Company are concerned, to rely upon such analysis alone, because in a reply brief filed on their behalf only, it is stated: "That testimony of Mr. Stoldt (the engineer testifying for plaintiff) and all other testimony indicates that the connection between the formation in which the new well bottom was close and open to the creek.
Much has been written on the subject of res gestae, and no definite rule can be stated, but rather the admissibility of such statements must depend upon the particular circumstances of each case, and in a great measure is left to the discretion of the trial court. Marland Refining Co. v. Snider (1926) 120 Okla. 116, 251 P. 989; Standard Accident Insurance Co. v. Baker (1930) 145 Okla. 100, 291 P. 962; Travelers Ins. Co. v. Minton (1937) 181 Okla. 306, 73 P.2d 422. However, it is settled that where it appears from the circumstances of a particular case that the statement complained of was merely a narrative of past happenings, deliberative rather than spontaneous, and was made under circumstances where the mind was not controlled by shock or excitement, it is not admissible. Missouri, O. G. Ry. Co. v. Adams (1915.)
Circumstantial evidence when offered in proof of a fact in a civil case need not, as in the prosecution of a criminal cause, exclude every other reasonable hypothesis. Marland Refining Co. v. Snider, 120 Okla. 116, 251 P. 989; M., K. T. v. Simerly, 72 Okla. 251, 180 P. 551. However, in order to support a verdict for the plaintiff, circumstantial evidence must be sufficient to render the fact or conclusion sought to be established more probable than one or more other conclusions which would be inconsistent with liability. Wigmore on Evidence (2d Ed.) vol. 1, page 253. Otherwise the decision would be said to rest on speculation and conjecture.
This court has repeatedly held that a motion for a new trial on account of newly discovered evidence is addressed to the sound discretion of the trial court, and in the absence of an abuse of such discretion, its action thereon will not be disturbed on appeal. See Missouri, K. T. R. Co. v. Taylor, 69 Okla. 79, 170 P. 1148; Cook v. Harjo, 118 Okla. 291, 248 P. 651; Marland Refining Co. v. Snider, 120 Okla. 116, 251 P. 989; Eisenbeis v. Crocker, 99 Okla 30, 225 P. 510; Trent v. Richards, 90 Okla. 20, 215 P. 747; Schaap v. Williams, 99 Okla. 21, 225 P. 910. In Vickers v. Philip Carey Co., 49 Okla. 231, 151 P. 1023, we have the unusual case of the trial court granting a new trial on newly discovered evidence, which action in this court was found to be an abuse of discretion and to constitute reversible error.
The admissibility of statements as a part of the res gestae is largely determined by the facts and circumstances of each case and should in a great measure be left to the determination of the trial court. Standard Accident Ins. Co. v. Baker, 145 Okla. 100, 291 P. 962; Marland Refining Co. v. Snider, 120 Okla. 116, 251 P. 989. We have heretofore alluded to the testimony of Black. The evidence further discloses that when the clothing of deceased caught fire he ran to a creek about 40 yards from the boilerhouse for the purpose of extinguishing the fire; that Black ran about 200 yards and met deceased as he was returning from the creek.
Under these circumstances it would be going too far to say that the trial court should consider only the direct evidence and entirely blind himself to the circumstantial evidence. It was said in Marland Refining Co. v. Snider, 120 Okla. 116, 251 P. 989, that: "Facts may be proved by circumstantial as well as by positive or direct evidence, and it is not necessary that the proof rise to that degree of certainty which will exclude every other reasonable conclusion than the one arrived at."