#### LILLIAN COLEY, by and Through Her Next Friend, A. E. COLEY, v. E. E. PHILLIPS.

(Filed 8 November, 1944.)

1. Evidence § 42b—

For a declaration to be competent as part of the *res gestee,*at least three qualifying conditions must concur: (a) The declaration must be of such spontaneous character as to preclude the likelihood of reflection and fabrication; (b) it must be contemporaneous with the transaction, or so closely connected with the main fact as to be practically inseparable therefrom; (c) and must have some relevancy to the fact sought to be proved. If not of this character, its mere nearness to the transaction in point of time has no significance.

2. Same: Negligence § 13b—

In an action, by the next friend of an infant eight years of age against defendant, to recover for injuries sustained in a collision with defendant’s *619automobile, allegedly caused by the negligence of the defendant, who pleaded contributory negligence, evidence that the child’s mother came, half crying, upon the scene within two minutes of the accident, and said, “I have told her about crossing that highway a number of times,” is not competent as part of the *res gestee,*and there could be no imputed negligence.

3. Negligence § 20—

In the court charge, in an action to recover for personal injuries, allegedly caused by negligence of defendant — Upon th'e issue of contributory negligence the test is: Did plaintiff fail to exercise that degree of care which a reasonably prudent person would have exercised or employed under the same or similar circumstances to avoid injury and was such failure proximate cause of the injury? That is what is negligence for defendant. The corresponding negligence of plaintiff is called contributory negligence. We refer to it as negligence when alleged against the defendant, and contributory negligence when alleged against plaintiff'— whose negligence need only to contribute as proximate cause, to defeat recovery — there is no reversible error, when the same was rendered harmless by more particular instructions given thereafter.

Appeal by defendant from *Stevens, J.,*at February Civil Term, 1944, of Wae:e.

*Bunn & Arendell for appellee, plaintiff.*

*John W. Hinsdale for appellant, defendant.*

Seawell, J.

This action was brought by the plaintiff, through her next friend, to recover for an injury sustained in a collision with defendant’s automobile, alleged to have been caused by the negligence of the defendant. In his answer, the defendant pleaded contributory negligence on the part of the plaintiff — at the time a child eight years of age.

There is much conflicting evidence as to the behavior of both plaintiff and defendant in the unfortunate experience, but the sufficiency of the evidence to go to the jury, both on the issue of defendant’s negligence and that of contributory negligence of plaintiff, is not questioned. Both issues were submitted to the jury, and answered in favor of the plaintiff.

The defendant’s appeal involves only two exceptions: The one to the exclusion of evidence supposed to be material on the issue of contributory negligence; and the other, to an instruction to the jury on the same subject. Other exceptions are abandoned or are formal.

(1) It was in evidence through defendant’s witness, Finley, that “a few seconds” after the child was hit the father came up out of the field, and “within two minutes” the mother came and was half crying. The witness was asked: “What did the mother say, if anything ?” This was excluded on plaintiff’s objection. If permitted to answer the witness would have said: “The mother stated, *‘1*have told her about crossing *620that highway a number of times.’ ” The defendant contends that this statement, made by the stricken mother within two minutes of the occurrence, is a part of the *res gestae;*and is material, as showing that the child was negligent on this occasion, or had been guilty of violating repeated warnings.-

Since the mother, according to the evidence, did not see the collision at all, and knew nothing about the circumstances, or the behavior either of the child or the defendant, it is difficult, indeed, to see how the 'declaration was “the facts talking through the party” — to use the shorthand expression of the test as given in 32 C. J. S., p. 45, sec. 417, and in 20 Am. Jur., p. 556, sec. 662, and in *Batchelor v. Atlantic Coast Line R. Co.,*196 N. C., 84, 144 S. E., 542. If the mother was attempting to say she had performed her own duty, that fact had no relation to the issue; if she intended to admit or suggest the negligence of the child, not only was she not competent to do so in this way, but she could only have been a party “talking about the facts” and facts of which she knew nothing.

For a declaration to be competent as part of the *res gestae,*at least three qualifying conditions must concur: (a) The declaration must be of such spontaneous character as to be a sufficient safeguard of its trustworthiness; that is, preclude the likelihood of reflection and fabrication; 32 C. J. S., pp. 45, 46, *supra;*instinctive rather than narrative; *Queen v. Ins. Co.,*177 N. C., 34, 97 S. E., 741; *Summerrow v. Baruch,*128 N. C., 202, 38 S. E., 861; (b) it must be contemporaneous with the transaction, or so closely connected with the main fact as to be practically inseparable therefrom; *Queen v. Ins. Co., supra;*and (c) must have some relevancy to the fact sought to be proved. It must be remembered that to be admissible the declaration must be *a part*of the *res gestee*■ — not merely *amongst*the *res gestae*— that is, it must be so interwoven into the transaction that it may be vested with the significance of a fact— that is, one of the *“res gestae”*or “things done.” They are called “verbal facts” or “verbal acts.” 20 Am. Jur., Evidence, sec. 664. If not of this character,- its mere nearness to the transaction in point of time has no significance.

No rule of universal application can be devised as to the time element; but the principle of relevancy to the fact sought to be proved by it admits of no relaxation. *Holmes v. Wharton,*194 N. C., 470, 140 S. E., 93, 76 A. L. R., 1125 (Anno.).

When the mother arrived, the transaction out of' which the injury arose was a *fait accompli*— she was not then, and had not been, any part of it in the sense that the facts might speak through her. In this particular instance the declaration, if it had any significance beyond a mere *621fear tbat ber cautions bad been disregarded, merely expressed an opinion wbieb would bave been incompetent even if presented in tbe form of testimony. *Field v. North Coast Transportation Co.*(Wash., 1931), 76 A. L. R., 1114. No allegation of contributory negligence on tbe part of tbe mother bas been made in tbe answer, and there is no evidence of any. There could be no imputed negligence.

(2) Tbe court instructed tbe jury as to what constituted contributory negligence, as follows :

> “Upon tbe issue of contributory negligence tbe test is: Did tbe plaintiff fail to exercise tbat degree of care which a reasonably prudent person would bave exercised or employed under tbe same or similar circumstances to avoid injury and was such failure to do so tbe proximate cause of tbe injury sustained? Tbat is what is negligence for tbe defendant. Tbe corresponding negligence of tbe plaintiff is called contributory negligence. We refer to it as negligence when alleged against tbe defendant. When alleged against a plaintiff we call it contributory negligence.” Tbe defendant objects to tbe interpolation of tbe sentence: “Tbat is what is negligence for tbe defendant,” contending tbat it is ambiguous and misleading.

Tbe purpose of tbe court doubtless was to simplify tbe definition of contributory negligence of tbe plaintiff by similarizing it to tbe negligence of which tbe defendant might be charged. Tbe same comparison bas frequently been made by this Court in tbe interest of clarity; *Lishe v. Walton,*198 N. C., 741, 153 S. E., 318; *Templeton v. Kelley,*215 N. C., 577, 2 S. E. (2d), 696; *Sebastian v. Horton Motor Lines,*213 N. 0., 770, 197 S. E., 539. Whatever inexactness or confusion might bave resulted from tbe form in wbieb this general instruction was given was rendered harmless by tbe more particular instruction later given to tbe jury, appearing on p. 57 of tbe record, and applied to tbe facts on tbe'issue of contributory negligence:

> “Now, this issue presents for your consideration and determination tbe question of fact as to whether or not tbe plaintiff, Lillian Coley, is guilty of what tbe law calls contributory negligence. Tbe defendant in this case alleges tbat tbe plaintiff was guilty of contributory negligence, tbat is, tbat tbe plaintiff was negligent and tbat such negligence on. tbe part of tbe plaintiff was a proximate cause of tbe plaintiff’s injury. Tbe plaintiff, of course, denies this. Tbe law contemplates tbat every person having the capacity to exercise reasonable care for bis own protection against injury will do so. If be fails to exercise such care and such failure concurring and co-operating with tbe actionable negligence of tbe defendant contributes to tbe injury complained of as a proximate cause, then be is guilty of contributory negligence; so, in this case she would be.”

*622Considering that the plaintiff was a child eight years old, this instruction is more favorable to the defendant than he could have demanded, without a- proper explanation, which the court later on gave.

The exceptions disclose

No error.