clear. Engine 960 was being prepared for passenger service, and at the proper time was supposed to back down to the depot, when the switch engine was to take its place and obtain its supply of sand and water. For some reason, upon which the evidence is in conflict, engine 960 moved forward a short distance until its pilot collided with the footboard at the rear of the switching engine. At the time of the collision, Hargraves was standing on the pilot of engine 960, and received injuries resulting in his death. It seems to be admitted that, because of the amount of steam from the engines, Hargraves's position upon the pilot of 960 could not be seen by the crew of either engine, and there is no contention that the engineer or the fireman of either engine knew he was on the pilot. As above stated, the last work of the deceased, prior to his getting upon the pilot, was assisting in filling up the sand box. The only positive testimony is that, after completing this work, Hargraves pulled a plank which connected the sand house platform with the running board of the engine upon which they were at work, back to the platform, and was standing on the platform, while another hostler's helper who had been assisting him went to the water tank near by to perform other duties. The next appearance of Hargraves was on the ground near to the pilot of engine 960. How he got there or what he was doing there no one seems to know. He was then seen to step upon the pilot of engine 960 as it moved court said: "The conversation testified to was explanatory of, and so connected with, the act of deceased in going to the depot grounds on that particular occasion, as to become a part of the res gestæ, and admissible as illustrative of that act. The circumstances under which the declaration was made exclude the idea that it was designed to serve any other than the purpose indicated, and we think clearly comes within the following definition of res gesto as given by Mr. Wharton: "The res gesta may be therefore defined as those circumstances which are automatic and undesigned incidents of a particular litigated act, and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable; they may consist, as we will see, of sayings and doings of anyone absorbed in the event, whether participant or bystander; they may comprise things left undone, as well as things done; their sole distinguish ing feature is that they must be the automatic and necessary incidents of the litigated act, necessary in this sense, that they are part of the immediate preparation for, or emanations of, such act, and are not produced by the calculated policy of the actors.' Wharton, Ev. § 259. We think this testimony was properly admitted." forward, facing the rear and then turning around towards the roundhouse. No one knows why he stepped upon the pilot, nor do any of those who saw him testify that he was doing anything when the engine moved forward. Some of those standing near saw the probability of a collision with the switch engine and shouted a warning, to which he paid no attention, either not hearing or not heeding it. So far as we can discover from this record, Hargraves had no duties to perform which would take him upon the pilot of the engine at this time, and the reason for his presence there is a matter of conjecture. It is shown that there was a rule posted in the roundhouse forbidding employees to ride on engine pilots, and that in addition to this rule Hargraves, who had been in the employ of the company for only about a month, had on two occasions been told by the hostler not to ride on the pilot. If the deceased was at work at the time he received his injury, in the performance of some required duty, this verdict must be sustained. With that view we have carefully examined the record to ascertain, if possible, what the deceased was doing upon the pilot, or what he purposed to do when he went there; and we can find nothing which refutes the positive testimony that he had no duties to perform which would take him there, or of those eyewitnesses to his position on the pilot that he was not performing any at the time. One of the witnesses for the plaintiff gives it as his opinion, or, as he This was the law on this phase of the case on a second appeal, 27 Colo. 313, 51 L.R.A. 121, 61 Pac. 606, where it was also held that a third person was competent to testify as to such conversation between the deceased and the relative mentioned. And upon the issue whether deceased was a passenger on a steam railroad at the time he was killed, his statement, upon leaving the house in a hurry, after having looked according to his custom to see if the electric cars upon which he usually traveled were running, that he was going to take the train as there were no electric cars running, was held admissible in Inness v. Boston, R. B. & L. R. Co. 168 Mass. 433, 47 N. E. 193, 3 Am. Neg. Rep. 42, to show the state of his mind, within the established exception to the rule against hearsay. A person who was present when others started out upon a drive, during which they came into collision with a railroad train upon a railroad crossing and were injured, may be permitted to testify as to what was said when they were about to depart as to where they were going, such testimony being a part of the res gesta, and not mere hearsay. Cincinnati, I. St. L. & C. R. Co. v. Howard, 124 Ind. 280, 8 L.R.A. 593, 19 Am. St. Rep. 96, 24 N. E. 892. W. W. A. puts it, "my idea," that after the plank graves. The only testimony we can find as used in filling the sand box was taken down, to oiling relief valves from the pilot is that Hargraves walked along the running board of one witness, who says it could be done to the front of the engine and then stepped by standing on the pilot beam and leaning down to the pilot, supporting his theory over and holding onto a brace. But the eviby saying he did not have the time to get dence shows that Hargraves was standing down to the ground and walk around to on the footboard, and not on the pilot beam. the front end of the engine. But this is Had he been on the pilot beam, he would only speculation, and is refuted by the testi- not have been injured, as the impact of the mony of a number of witnesses who saw collision was very slight, resulting in no him step from the ground to the pilot as appreciable damage to either engine. Anthe engine moved forward. Another theory other witness testified that this type of offered by respondent is that deceased was valve could be oiled with the engine standon the pilot for the purpose of oiling a ing still, by taking a wrench and turning relief valve. Neither of these theories is the valve up, putting a stick under the supported by any testimony. They are cap of the steam chest, pushing the plunger nothing more than conjectures as to what down, and pouring in oil. This testimony he might have been doing. On the other is all speculative so far as it furnishes hand, the testimony of all those who saw any guide to what Hargraves was doing, Hargraves just before he received his in- and is in direct conflict with the testijury is, not only that he was standing on mony of all those who were present at the ground when engine 960 started to the time and testified to what he was acmove, and that he stepped upon the pilot tually doing at the time. It might have from the ground, but that he had no oil can been done in the manner described by this or other appliance in his hand. This is witness, but there is no evidence that Harsupported by testimony that it was no part graves was making any such attempt. He of his duty, or of the hostler's crew, to oil had neither oil can, wrench, nor stick, and the relief valve, and that he had no access in addition had changed his position so to the lubricating oil. If there was any that his back was toward the relief valve. conflicting testimony upon this point, the Counsel for respondent in his argument jury might has disregarded this testi- asks, "If he was not oiling the engine, why mony as we have referred to it, and found was he there?" As we view the law, it is otherwise. But respondent offers no con- incumbent upon respondent to show what ficting testimony; she contents herself with Hargraves was doing, and that at the time testimony that is purely speculative, and of his injury he was in the performance of points out only what he might have been some duty owing to the appellant, and not doing. We do not think the jury, without | for appellant to make some affirmative showsupporting testimony, should be permitted to speculate as to what Hargraves might have been doing, when the testimony of all the eyewitnesses points clearly to what he was doing; nor that they should theorize as to how he reached his position on the pilot, when there is no conflict on that point. Long v. McCabe & Hamilton, 52 Wash. 422, 100 Pac. 1016; Scarpelli v. Washington Water Power Co. 63 Wash. 18, 114 Pac. 870. Appellant also offers testimony to the effect that it would be impossible to oil a relief valve of the type on engine 960 from the place where deceased stood, or with the engine standing still. The deceased was 5 feet 8 inches tall. The relief valve upon the engine was 8 feet from where he stood. Appellant's testimony is all to the effect that the relief valve could not be reached by Hargraves from the position in which he stood. This is not only the evidence of appellant, but a locomotive engineer introduced by respondent for the purpose of giving expert testimony admits that the relief valve on this engine could not be reached by a person standing in the position of Har ing to relieve it from liability. From the record, the only possible answer to the question is that he was not oiling the relief valve, and his purpose in stepping upon the pilot is a pure guess. After the injury to Hargraves he was taken to the hospital, where his mother arrived about 10:30, shortly before his death. She was interrogated as to his condition while she was there, and the record of her testimony is in part as follows: Q. Was he fully conscious when you got sel, was overruled, and the question was of evidence is not to be determined by such renewed.) a test, for witnesses ofttimes testify to Q. Just state what your son said to you, facts which those to whom they have related Mrs. Hobbs, as to what he was doing at them may not testify to without violating the time he was injured. the rule against hearsay evidence. For A. He told me that he was applying oil these reasons we are of the opinion that to the relief valve. this evidence was improperly admitted, and Q. What did he say in regard to its being that it cannot be considered in determining the last work that he had to do? the question submitted by this appeal. A. He said, "Mamma, I was just finishing. I was applying oil to the relief valve, and then I was through." The admission of this testimony is now urged as error. If admissible at all, it can only be upon the theory that it was part of the res gesta, since dying declarations are admissible as such only in cases of felonious homicide. It is difficult to define the doctrine of res gesta so as to fit every case in which it is sought to be applied. The distinguishing feature of statements or declarations admissible under this rule is that they should be the necessary incidents of the litigated act; necessary in this sense, that they are part of the immediate preparation for or emanations of such act. Such incidents, whether acts or declarations, become in this way evidence of the character of the main act as, illustrating or explaining that act. Jones, Ev. § 344. In Henry v. Seattle Electric Co. 55 Wash. 444, 104 Pac. 776, we laid down this rule: "In order to be a part of the res gesta, the subsequent declaration must explain or in some way characterize the main fact. It must not be the narration of a past event, nor the expression of an opinion." What was the "main fact" or "things done" in this case? The only possible answer is the coming together of these two engines and the consequent injury to Har graves. This was the litigated fact upon which it was sought to establish the cause of action. The declaration of Hargraves did not explain nor characterize this main fact. It offered no explanation of the reason why the engines came together. It in no way characterizes what happened when they did come together. It illustrated neither cause nor effect. It can only be characterized as a statement of what Hargraves was doing just prior to the accident, in no way connected with it; and as such it was a narration of a past event. The mere fact that, if Hargraves had survived his injuries and sought recovery against appellant, it would have been competent for him to testify to what he was doing at the time, does not establish its admissibility as a part of the res gesta. The admissibility One of the leading cases upon this point, cited as authoritative by the courts and text writers, is Waldele v. New York C. & H. R. R. Co. 95 N. Y. 274, 47 Am. Rep. 41, where a deaf mute was fatally injured by About thirty one of defendant's trains. minutes after the accident he made certain statements to his brother, to which, over objection, the brother testified as follows: "John said he got hit. John said there was a long train; that he stood waiting for it to go, and an engine followed and struck him.” The admission was held error, and the declaration on part of the res gesta; the court giving as its reason for the holding that the res gesta was the accident; that the declarations were not part of that, did not characterize it, nor throw any light upon it, but were purely narrative, giving an account of a transaction wholly past, and depending for their truth wholly upon the accuracy and reliability of the deceased and the verity of the witness who testified to it. The court then enters upon a discussion of the rule, reviewing many cases supporting these declarations. If the declaration in that case was the narration of a past event and not admissible as part of the res gesta, how can we otherwise char acterize the declaration in this case? There the declaration was as to what happened just prior to the accident, but not explaining it; here the declaration is of the same nature. In that case the deceased stated that he was waiting for a long train to pass, and was struck by an engine following; here the declaration was that he was applying oil to the relief valve and then he was through. Each case narrates a past event which must be covered by the same rule. If there is any distinction between the two cases in respondent's favor, it is to be found in the cited case, because of the fact that the declaration there is stronger in favor of her contention in that it contained a statement that the deceased was struck by an engine following the long train, and to that extent might be said to state the cause of the injury, were it not narrative in character. But the case before us is that much weaker, in that it does not purport to explain the accident nor il lustrate it. Many authorities might be cited, but the following are sufficient to illustrate the rule here applicable. Steinhofel v. Chicago, M. & St. P. R. Co. 92 Wis. 123, 65 N. W. 852; Johnston v. Oregon Short Line R. Co. 23 Or. 94, 31 Pac. 283; Tennis v. Inter-State Consol. Rapid Transit R. Co. 45 Kan. 503, 25 Pac. 876; Corder v. Talbott, 14 W. Va. 277; Wagner v. H. Clausen & Son Brewing Co. 146 App. Div. 70, 130 N. Y. Supp. 584; Gebus v. Minneapolis, St. P. & S. Ste. M. R. Co. 22 N. D. 29, 132 N. W. 227; Kehan v. Washington R. & Electric Co. 28 App. D. C. 108; Jones, Ev. § 345; note to Walters v. Spokane International R. Co. 42 L.R.A. (N.S.) 918. Respondent cites the following cases from this court as sustaining the admissibility of this declaration: Roberts v. Port Blakely Mill Co. 30 Wash. 25, 70 Pac. 111, 12 Am. Neg. Rep. 372; Starr v. Etna L. Ins. Co. 41 Wash. 199, 4 L.R.A.(N.S.) 636, 83 Pac. 113; Walters v. Spokane International R. Co. 58 Wash. 203, 42 L.R.A. (N.S.) 917, 108 Pac. 593; Riggs v. Northern P. R. Co. 60 Wash. 292, 111 Pac. 162. In each of these cases the statement admitted in some way explained the accident and cause of the injury, and was for this reason held to be within the rule. This declaration makes no attempt to explain the accident causing the injury, and hence the same reasoning would not apply. not incidental to his employment. This rule is sustained by all the authorities, and the Federal act in nowise attempts to change it. Unless the evidence in this case shows that the deceased was upon the pilot of this engine in the discharge of some duty required by the railway company, then the railway company owed him no duty except to avoid injuring him after it discovered his perilous position. Such is so clearly the law that it will not be doubted, and no authorities need be cited to sustain it. There is no evidence in this record that the deceased was required to do any act which would place him upon the pilot of the engine. All the evidence on this subject is to the contrary. So far as we can find, whatever it was that caused him to step upon the pilot, it was his own purpose, not in any way connected with his work as a hostler's helper. If it was his purpose to engage in any task, so far as this record goes, in so doing he was a volunteer without appellant's direction or knowledge, and so far as the law is concerned the result is the same. If we could find anything in the evidence which would justify a different conclusion, however meager it might be, we would submit to the verdict as determinative of the fact. But we cannot find it, and, such being the case, however unfortunate or distressing the circumstances may be, it is our duty to so hold. The lower court should have sustained appellant's challenge to the sufficiency of the evidence and given judgment in its favor. The judgment is reversed, and the cause remanded, with instructions to enter judgment in favor of appellant. Crow, Ch. J., and Mount, and Parker, JJ., concur. Petition for rehearing denied, January 4, 1915. APPEALS. One of the questions in the case is whether the deceased was injured while acting within the scope of his employment. Respondent contends that, this action being under the Federal employers' liability act, the statute renders such question immaterial, and that the only test is, Was the employee injured while employed by a carrier engaged in interstate commerce? The Federal act does not give a cause of action to the employee for injuries not occasioned by negligence, and no recovery can be had under this act by simply showing the injury, and that at the time the injured servant was engaged in interstate DISTRICT OF COLUMBIA COURT OF commerce. The rule of liability against a railway company engaged in interstate commerce is predicated upon the duty of the company to furnisa its servant with a reasonably safe place in which to perform the work it requires of him, or while he is about those places which are incident to his work, and this duty is incident to all places where the employee must neces- Master and servant Federal employsarily be in connection with his employ- ers' liability act Pullman porter. ment. But that duty is not incident to 1. A Pullman porter is not an employee places where a servant is not required to Note. As to whether employees of combe, nor expected to be, in the performance panies other than railroad companies are of his work. Nor does it cover the serv-within the Federal employers' liability act, ant when he is not within the scope of his employment, or doing some act which is GEORGE R. ROBINSON, Appt., V. BALTIMORE & OHIO RAILROAD COM- (40 App. D. C. 169.) see page 64 of the note to Lamphere v. Oregon R. & Nav. Co. 47 L.R.A. (N.S.) 38, of the railroad hauling the car on which he | P. R. Co. v. Peterson, 162 U. S. 346, 40 L. is employed, so as to come within the pro- ed. 994, 16 Sup. Ct. Rep. 843; New England vision of the Federal employers' liability R. Co. v. Conroy, 175 U. S. 323, 44 L. ed. act invalidating contracts by which carriers 181, 20 Sup. Ct. Rep. 85, 7 Am. Neg. Rep. attempt to exempt themselves from the liability to their employees created by that act. Same contract for indemnity - relinquishment of right of action. 2. One who, when employed as a Pullman porter, agrees to protect the Pullman Company in its contracts by which it undertakes to indemnify railroad companies against liability for injuries to Pullman employees, deprives himself of the right to maintain an action against the railroad company for injuries received in the course of his employment. A (March 10, 1913.) PPEAL by plaintiff from a judgment of the Supreme Court in favor of defendant, in an action brought to recover damages for personal injuries sustained by plaintiff while engaged in the performance of his duties as a Pullman porter. Affirmed. The facts are stated in the opinion. Messrs. Alexander Wolf and Levi H. David for appellant. Messrs. George E. Hamilton, John J. Hamilton, and John W. Yerkes, for ap. pellee: Plaintiff, at the time of the injury, was not, as a matter of law or fact, an employee of the railroad company, and therefore none of the provisions of the employers' liability act can be invoked and enforced in his behalf. 182. Mr. Justice Van Orsdel delivered the opinion of the court: This suit was brought by appellant, George R. Robinson, in the supreme court of the District of Columbia against defendant, the Baltimore & Ohio Railroad Company, to recover damages for injuries sustained by plaintiff on April 10, 1910, while engaged in the performance of his duties as a Pullman porter. At the time of the accident he was the porter in charge of a car belonging to the Pullman Company which formed part of a train of defendant company operating in interstate commerce between Washington, District of Columbia, and Wheeling, West Virginia. On the trial below, when the testimony on behalf of plaintiff had been given, the court, on motion of counsel for defendant, instructed the jury to return a verdict for defendant. From the judgment thereon, the case comes here on appeal. It appears that on August 21, 1905, plaintiff made written application to the Pullman Company for employment as a Pullman-car porter. In the following November, he was taken into the service of the Pullman Company, signing a written contract as a condition of his employment, the material provisions of which are as follows: "Fourth. I assume all risks of accidents or casualties by railway travel or otherwise, incident to such employment and service, and hereby, for myself, my heirs, executors, administrators or legal representatives, forever release, acquit, and discharge the Pullman Company, and its officers and employees, from any and all claims for liability of any nature or character whatsoever on account of any personal injury or death to me in such employment or service. Baltimore & O. S. W. R. Co. v. Voigt, 176 U. S. 498, 44 L. ed. 560, 20 Sup. Ct. Rep. 385; McDermon v. Southern P. Co. 122 Fed. 669; Hughson v. Richmond & D. R. Co. 2 App. D. C. 98; Chicago, R. I. & P. R. Co. V. Lamler, 215 Ill. 525, 1 L.R.A. (N.S.) 674, 106 Am. St. Rep. 187, 74 N. E. 705, 1 Ann. Cas. 42; Russell v. Pittsburgh, C. C. & St. L. R. Co. 157 Ind. 305, 55 L.R.A. 253, 87 Am. St. Rep. 214, 61 N. E. 678; Chicago & N. W. R. Co. v. O'Brien, 67 C. C. A. 421, 132 "Fifth. I am aware that said the PullFed. 593; Employers' Liability Cases (How- man Company secures the operation of its ard v. Illinois C. R. Co.) 207 U. S. 463, 52 cars upon lines of railroad, and hence my L. ed. 297, 28 Sup. Ct. Rep. 141; Denver & opportunity for employment, by means of R. G. R. Co. v. Whan, 39 Colo. 230, 11 contracts, wherein said the Pullman ComL.R.A.(N.S.) 432, 89 Pac. 39, 12 Ann. Cas. pany agrees to indemnify the corporations 732; New York, C. & H. R. R. Co. v. Difen- or persons owning or controlling such lines daffer, 62 C. C. A. 1, 125 Fed. 893; Oliver of railroad against liability on their part v. Northern P. R. Co. 196 Fed. 432; Balti- to the employees of said the Pullman Commore & O. R. Co. v. Baugh, 149 U. S. 368, 37 pany in cases provided for in such contracts, L. ed. 772, 13 Sup. Ct. Rep. 914; Northern and I do hereby ratify all such contracts, covering the general subject of the consti- | road company from liability for negligent tutionality, application, and effect of the Federal employers' liability act, and page 72 of the subsequent note in L.R.A.1915C, 47. Generally as to contract exempting rail injury to sleeping car employees or others sustaining a similar relation to the company, see notes to Denver & R. G. R. Co. v. Whan, 11 L.R.A. (N.S.) 432, and Coleman v. Pennsylvania R. Co. 50 L.R.A.(N.S.) 432. |