Appeal, No. 252, March T., 1954, from order of Court of Common Pleas of Butler County, Sept. T., 1952, No. 72, in case of Stephen A. Weshalek et al. v. Frank Weshalek, Admr., Estate of Mildred Oravecz, Deceased, et al. Judgment reversed. Trespass for personal injuries and property damage. Before CRAFF, P.J., specially presiding. Verdicts for plaintiffs against defendant administrator in the total sum of $11,572.86; verdicts for remaining defendants; and judgments entered thereon. Defendant administrator appealed.
J. Campbell Brandon, with him Brandon, Millar, Rockenstein & MacFarlane, for appellant.
Samuel R. DiFrancesco, with him George P. Kiester and Kiester, Coulter & Gilchrist, for appellees.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The appeal is from a judgment for plaintiff in an action in trespass growing out of an automobile accident involving collisions of three motor vehicles. Three deaths resulted and serious injuries were sustained by the remaining occupants. Six actions were consolidated for the purpose of the present appeal. Counsel stipulated that the decision in this case should be binding as to all the other judgments. The determinative question is whether or not a statement, made by one of the defendants to a state policeman after the accident, was properly admitted as part of the res gestae.
The collision involved two tractor and trailer trucks and an automobile. One tractor and trailer was passing another tractor and trailer while proceeding in the same direction down a slight grade westwardly on Route 422, a three lane highway, about three miles west of the City of Butler. Approaching in the opposite direction was an automobile in which were three adults and five children. The evidence of how the accident happened is circumstantial with the exception of the alleged res gestae statement made by the driver of one of the trucks. The surviving parties were rendered incompetent to testify under the Act of May 23, 1887, P.L. 158, sec. 5, 28 PS 322. It was alleged that the automobile veered to its left to such an extent that it first collided with the passing truck and then struck the truck being passed. The automobile was found in the center lane of the three lane highway, the passing truck was found against the guard rail on the opposite or its wrong side of the road. The other truck which was being passed was found on its side down an embankment on the opposite or its left side of the road. The automobile and the passing truck caught fire and burned. Killed in the accident were the driver of the
automobile and two of the children. The remaining occupants of the car were all injured and were the present plaintiffs in this action with the personal representatives of the two deceased children. The parties defendant are the administrator d.b.n. of the estate of the driver of the automobile and J. H. Sprecher, Inc. and John Krall, the owner and driver, respectively, of the tractor and trailer which was doing the passing. The jury rendered a verdict against the administrator d.b.n. of the estate of the driver of the automobile and exonerated J. H. Sprecher, Inc. and John Krall, the owner and driver of the truck above mentioned. Claiming error in the admission at the trial of a statement made by John Krall, defendant so exonerated, the administrator d.b.n. of the deceased driver of the automobile appeals.
William J. Steiner, a state police officer, arrived at the scene of the accident approximately twenty-five minutes after it had occurred. In his investigation he noted Krall sitting on the guard rail by the side of the road. Steiner testified: "He was in very bad shape. He didn't have any clothes on, outside of a pair of trousers, and he was holding them in front of him. His face was severely burned, his hair all burned off, with the exception of a quarter of an inch remaining, and it was all singed." The officer further testified that Krall was not able to see very well, his eyes were swollen and his eyelashes were burned off; that he placed Krall in the police car to take him to the hospital, that he tried to place a blanket over him, but found it impossible so to do because "the pain was too terrific"; that on the way to the hospital he kept asking Krall "... questions, and he would answer as best he could. I asked him what happened, and he tried to explain." Over the objection of the defendants' counsel the police officer was allowed to testify
to the following statement: "A. I asked him what happened, and he said he was passing a truck, going down a hill, and he was out in the center lane, passing this truck, and this car coming from the opposite direction toward him swerved to the left of the road, and then back over to her right; which would be to the left as you are traveling toward Butler, and then back to the right as you are traveling toward Butler. When she swerved back to her right it hit the ...