#### Christianson, Administrator, Respondent, vs. The Pioneer Furniture Company, Appellant.

*Mar eh IS*—

*March 27, 1896.*

*Master and servant: Death caused by defective machinery: Declarations-of deceased:*Res gestae: *Contributory negligence: Instructions.*

1. Declarations of a person fatally injured as to how the accident happened, made to a fellow-servant a very few minutes after it occurred and practically on the scene thereof, were a part of the-*res gestee.*

2. In an action for the death of a person, alleged *to*have been caused by defects in the machine at which he was working in defendant’s service, an instruction that negligence of the deceased, if *650the direct cause of the injury, would defeat a recovery *if he lenew of the defeats in the machine,*was erroneous. [Whether such error would work a reversal where a correct instruction on the subject was given elsewhere in the charge, not determined.]

Appeal from a judgment of the circuit court for La Crosse ■county: O. B. Wyman, Circuit Judge.

*Reversed.*

■ This is an action to recover damages for the death of the plaintiff’s intestate, which is alleged to have been caused by the defendant’s negligence. The intestate, Peter Christian-son, was eighteen years and two months old at the time of his death, and was employed in the defendant’s furniture factory at Eau Claire, and had been so employed for a little more than two years. On the 31st day of August, 1891, he was employed in feeding a certain circular ripsaw in the defendant’s factory. A boy fourteen years of age was assisting him, whose duty it was to take away the strip ripped from behind the saw. The pieces of wood being ripped consisted of strips of hardwood one inch in thickness, about three feet in length, and three inches in width, from which ■a strip of about one eighth of an inch on one side was being ripped. The intestate stood at the south end of the saw table, and pushed the sticks through, and his assistant pulled them through on the other side. As one stick was going through, after it had been sawed into about five or six inches, it was suddenly thrown back with great force, and struck the intestate in the abdomen. He at once threw off the belt ■of the machine, went to the water pail and got a drink, then went to the closet just outside, and then went home, and died on the second day thereafter from the effects of his injury. The testimony tended to show that the intestate had been employed principally in operating molding machines or sticklers, but there was testimony that he had at times helped to operate ripsaws. On the afternoon in question he was set ¡to work on the ripsaw by the foreman of the factory.

• It was claimed by the plaintiff that the defendant was *651negligent in not furnishing a safe appliance for the intestate to work upon in that (1) the saw was dull; (2) the saw table worn and uneven; (3) that there was no spreader or (4) guard upon the saw. On the part of the defendant it was denied that there was negligence in any of these particulars, ■and it was claimed that the intestate was guilty of contributory negligence in not attending to his work, but that he was watching some boys at play in the shop at the time, and did not hold the stick down as it was passing through the saw.

The trial resulted in a verdict and judgment for the plaintiff, and the defendant appealed.

For the appellant there was a brief by *V. W. James,*attorney, and *Fruit da Brindley,*of counsel, and oral argument by *Mr. James*and *Mr. J. J. Fruit.*

They argued, among other things, that the conversation between the deceased ■and the witness Jackson should have been received as a part ■of the *res gestae. Insurance Go. v. Mosley,*8 Wall. 397; *Gomm. v. McPiTte,*3 Cush. 181; 1 Taylor, Ev. (7th ed.), § 588; *Mermes v. G. da FT. W. P. Go.*80 Wis. 590; *Brown-dll v. Pac. B. Go.*47 Mo. 239; *Reed v. Madison,*85 Wis. 667; *Mo. Pac. R. Go. v. Baier,*37 Neb. 235; *Keyser v. G. da G. T. R. Go.*66 Mich. 390; *State v. Moran,*32 Minn. 394. The declarations of the decesased were also admissible as being against the interest of the party who made them. *Stern v. Railroad Go.*7 Leg. G-az. 223; 1 Greenl. Ev. §§ 153, 180, 247; *MurTbwri v. MurTbwri,*128 N. Y. 420.

For the respondent there was a brief by *T. F. Frawley*and *A. G. Larson,*attorneys, and *G. T. Bundy*and *Winter, Esch da Winter,*of counsel, and oral argument by *Mr. B'undy.*

They contended, *inter alia,*that the evidence of the witness Jackson was not admissible as a part of the *res gestee. Graves v. People,*18 Colo. 170; *Richmond da D. R. Go. v. Mammond,*93 Ala. 181; *Texas dó N. O. R. Go. v. Growder,*70 Tex. 222; *Mcurtin v. M. 7., M. M. da M. R. Go.*103 N. Y. *652626; *Waldele v. JN~. Y. C. & H. R. JR. Co.*95 id. 274; *JMJo. Pao. R. Co. <o. JBaier,*37 Neb. 235, and eases cited; *Chicago-W. P. R. Co. v. Becker,*128 Ill. 545; *Sorenson v.*Dundas, 42 Wis. 642; *Made v. State,*48 id. 280; *Muiaha v. Pierce7*49 id. 231; *Fitzgerald v. Weston,*52 id. 356; *Hermes v. C. dé N. W. R. Co.*80 id. 590. The declarations of the deceased were not admissible as an admission against interest.. *Atlcinson v. Bond Hill,*1 Ohio, N. P. 166; *Cleveland, C.,*0L *& St. L. R. Co. v. Sloan,*11 Ind. App. 401; *Citizens' St. R. Co. v. Stoddard,*10 id. 278; *Louisville, E. dé St. L. R. Co. v.. Barry,*2 id. 427; Lawson, Eights, Eem. & Pr. § 1108; *Johnson v. O. S. L. R. Co.*23 Oreg. 94; *Richards v. Moore,*62' Yt. 217; *Bradford v. Downs,*126 Pa. St. 622; *Cray v. McLaughlin,*26 Iowa, 280; *Sanford v. Sanford,*5 Lans. 486; *Wooten v. Wilkins,*39 Gfa. 223; *Pennsylvania Co. v. Longr*94 Ind. 250; *Ohio & M. R. Co. v. Hammersley,*28 id. 371; *Louisville dé H. R. Co. v. Pearson,*97 Ala. 211; *Leahey*v-*C. A. da F. C. R. Co.*97 Mo. 165; *Steinhofel v. C, M. dé St. P. R. Co.*92 Wis. 123; *Mutcha v. Pierce,*49 id. 231; *Fitzgerald v. Weston,*52 id. 356.

WiNsnow, J:

We were strongly urged to reverse this judgment on the ground that a verdict for the defendant should have been directed either on the ground that no negligence was shown on the part of the defendant, or on the ground that contributory negligence was conclusively shown; but we decline to do so. There was, in our judgment, sufficient evidence to carry the case to the jury on both of these propositions.

This judgment must, however, be reversed on account of the rejection of competent evidence offered by the defendant. The facts were these: One Jackson was offered as a witness for defendant. He was an employee of the defendant at the time of the accident, and worked at a tenoning machine in the same room with the deceased, and about *653fifty feet from tbe ripsaw in question. It bad appeared by tbe testimony of tbe boy wbo helped tbe deceased that, as •soon as tbe board struck tbe deceased, be threw tbe belt from tbe machine, said that struck him pretty bard, walked at an ordinary gait to tbe water pail, about fifty feet distant, took a drink, and then walked out of tbe outside door, :and entered a closet, about eight or ten feet distant from tbe door and adjoining tbe shop building. Jackson testified that be saw tbe deceased go out of tbe door; that a boy ■came in right after deceased went out, and came past Jackson, and be asked tbe boy what was tbe matter, and tbe boy . said, “ Pete is hurt.” Thereupon Jackson went right out to tbe closet, and found tbe deceased sitting, resting bis face ■on bis bands, pale, and apparently in pain. Jackson further •testified that be at once bad a conversation with him as to bow tbe accident happened, and that tbe deceased stated in •substance bow it occurred. When asked to state tbe conversation, an objection to tbe testimony was sustained by tbe court. We think this ruling was erroneous. Tbe conversation sought to be elicited was held with tbe main actor in tbe accident, a very few minutes after tbe fatal stroke, ipractically on tbe scene of tbe accident, and is so clearly and closely connected with tbe main fact as to impress the mind with tbe idea that it sprang spontaneously from it without design or premeditation. Within tbe decisions of ■this court in tbe cases of *Hooker v. C., M. & St. P. R. Co.*76 Wis. 542; *Hermes v. C. & N. W. R. Co.*80 Wis. 590, and *Reed v.*Madison, 85 Wis. 667, — :this verbal act was a part •of tbe *res gestee.*

Upon tbe subject of contributory negligence tbe court .•gave tbe following instruction to tbe jury: “If you find from tbe evidence that be was negligent and careless, and that his negligence and carelessness was tbe direct cause of the injury that occurred, then, even though this machinery was defective, tbe plaintiff is not entitled, to recover, *if he Jknew of the defeats”*This instruction is certainly errone*654ous. Under it the negligence of the deceased would only-defeat a recovery m *case the deceased 7mew of the defects in the machine.*This is not the law. Although a correct instruction on the subject was'given elsewhere in the charge., still, as there must be a new trial, we notice this error, so that it may not be repeated upon the second trial, without determining whether or not it would be sufficient of itself to call for reversal of the judgment.

As to the nearness of declarations to the main transaction necessary to make them a part of the *res gestee,*see note to *Ohio & M B,. Go. v. Stein*(133 Ind. 243), in 19 L. R. A. 733. — Rep.

*By the*Gourt.— Judgment reversed, and action remanded for a new trial.