VII. Truck not on obstruction on the railroad track under the Tennessee law. Curtis v. L. N.R.R. Co., 232 Fed. 109; Holder v. Railroad Co., 11 Lea 176; Railroad Co. v. Carroll, 6 Heis. 347; Railroad Co. v. Reidmond, 11 Lea 205; Railroad v. Anthony, 1 Lea 516; Railroad v. Binkley, 19 Cates 62; Railroad v. Crews, supra; Railroad v. Egerton, 14 Pickle 541; Railroad v. Selcer, 7 Lea 559; Railroad v. Womack, 96 C.C.A. 559, 173 Fed. 752; Rogers v. Railroad Co., 69 C.C.A. 321, 136 Fed. 573; Tennessee Cent. R.R. Co. v. Gleaves, 2 Tenn. App. 549. VIII. Precaution signals not required where car ran into side of engine or train. McCampbell v. Central of Ga. R.R. Co. (Tenn.), 253 S.W.2d 763; Railroad v. Simpson, 22 Thompson 458.
It is not possible to formulate a general rule as to what is or is not part of the Res gestae which will be decisive of the question in every case. Tennessee Central Railway Company v. Gleaves,Riverside Mill Co. v. Parsons, 2 Tenn.App. 549. The Res gestae rule is not a mechanical one.
As was stated by the learned Chancellor in his opinion, "In [Tennessee Central] Railroad [Co.] v. Graves [Gleaves], 2 Tenn. App. 549, which is a Tennessee case, it is stated that it is impossible to lay down a general rule as to what constitutes a part of the res gestae, and it must be left in great measure to the discretion of the trial judge in such cases. And likewise in National Life and Accident Insurance Co. v. Follette [Follett] 168 Tenn. 647 [ 80 S.W.2d 92], it is stated as follows:
If otherwise admissible as part of the res gestae, a statement will not be excluded merely because it is narrative in form. Tennessee Cent. Ry. Co. v. Gleaves, Adm'r, 2 Tenn. App. 549. The trial court is vested with a large discretion in ruling on the competency of evidence offered as part of the res gestae.
The rule as stated by our Supreme Court in National Life Accident Ins. Co. v. Follett, 168 Tenn. 647, 80 S.W.2d 92, 93, is as follows: "To be admissible as `res gestae,' act or declaration must be substantially contemporaneous with main fact, must spontaneously spring out of it, and must tend to illustrate, elucidate, or characterize it." In Tennessee Central Railway Co. v. Gleaves, Adm'x, 2 Tenn. App. 549, suit was instituted against the defendant Railroad for the wrongful killing of plaintiff's intestate. The evidence disclosed that after the party had been hit, and the train had stopped and backed up some four hundred feet and the engineer had alighted and walked back to the mail car, he replied to the question of the mail clerk that he had hit some one. This statement was held not admissible as a part of the res gestae, the court saying: "His (the engineer's) statement was neither voluntary nor spontaneous but was made in response to a question.
It does not appear that she was a general agent of defendant, or had authority to bind defendant by such admissions, and the excluded evidence was "hearsay" and was properly excluded. Tenn. Cent. Railway Co., v. Gleaves, 2 Tenn. App. 549; Smith v. Fisher, 11 Tenn. App. 273, 284; Travis v. Railroad Co., 9 Lea, 231, 233. It may be well to say, in this connection, that the statement of Levison was admissible (although he was merely an employee of defendant) for the reason that it was furnished to Miss Rice by the Business Manager of the defendant, and Levison was thereby made the "accredited agent" of the defendant, for the purpose of making the statement.
Haskins v. Howard, 159 Tenn. 86, 16 S.W.2d 20; Fisher v. Travelers' Insurance Co., 124 Tenn. 450, 138 S.W. 316, Ann. Cas., 1912D, 1246; Woodward v. Iowa Life Insurance Co., 104 Tenn. 49, 56 S.W. 1020. Mere opinions cannot prevail over actual facts. However, it is sufficient if the hypothetical question fairly states such facts as the evidence fairly tends to establish, and fairly presents the claim or theory of the party offering it. Tenn. Central Ry. Co. v. Gleaves, 2 Tenn. App. 549. There was evidence tending to show the facts assumed in the hypothetical question.
Denton v. State, 1 Swan, 278, 281; Street Railroad Co. v. Howard, 102 Tenn. 474, 478, 52 S.W. 864; Irvine v. State, 104 Tenn. 132, 138, 56 S.W. 845; Frank v. Wright, 140 Tenn. 535, 545, 205 S.W. 434; Tenn. Cent. Railway Co. v. Gleaves, 2 Tenn. App. 549. In the last-cited opinion, the Tennessee cases and numerous other authorities are reviewed, and the rule is there reaffirmed that declarations, in order to be admitted as a part of the res gestae, must be contemporaneous with the principal transaction of which they are a part; that the declarations are evidence because they are a part of the thing doing, and, therefore, if the thing shall have been done and concluded, declarations then made are not evidence.
He is not entitled to a charge on a theory that is possible but is not borne out by the evidence. See Green v. State, 154 Tenn. 26, 285 S.W. 554; Sou. Ry. v. Cantrell, 5 Tenn. App. 677; Tenn. Cent. Ry. Co. v. Gleaves, 2 Tenn. App. 549. 13. The defendant's thirteenth assignment, that the court erred in refusing to permit the defendant to introduce in evidence and to prove by the testimony of plaintiff's witness, Dr. E.T. Rippy, the original hospital record of the Nashville General Hospital, which contained a statement that the plaintiff was intoxicated at the time of his admission, and to permit the defendant to cross-examine the witness thereon, is not well made for the reason that this identical record was admitted by consent of counsel and read to the jury.