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.
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.
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.