Heckle

This action is brought by a mother to recover damages for the death of her son, who was killed by an accident on the railroad of the defendant. The jury found a verdict for the defendant; but the trial court made an order granting plaintiff’s motion for a new trial, and the defendant appealed from that order.

The motion for a new trial was made upon three grounds: 1. That the court erred in sustaining defendant’s objection to a certain question asked of the witness W. G. Dudley; 2. That the court erred in giving a certain instruction to the jury; and 3. That the court erred in giving a certain other instruction.

1. Dudley was a witness for the plaintiff, and the questions asked him to which objections were sustained related to what Heckle, the deceased, told the witness at the time of the accident. He was asked this question: “At that time did he say anything to you?” and, also, “What did Heckle say to you? What did he say as to the cause of the accident?” It is contended by respondent that these questions were proper because they were inquiries about declarations which were part of the res gestae; and defendant claims that they were not admissible as part of the res gestae. The…