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COCIVERA v. PHILADELPHIA TRANSPORTATION COMPANY. (06/10/59)

June 10, 1959

COCIVERA, APPELLANT,
v.
PHILADELPHIA TRANSPORTATION COMPANY.



Appeal, No. 148, Oct. T., 1959, from order of Municipal Court of Philadelphia, Feb. T., 1958, No. 407, in case of Josephine Cocivera v. Philadelphia Transportation Company. Order affirmed.

COUNSEL

Pershing N. Calabro, for appellant.

Albert R. Subers, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Gunther

[ 190 Pa. Super. Page 51]

OPINION BY GUNTHER, J.

On August 26, 1957, Josephine Cocivera was a passenger on a bus of the Philadelphia Transportation Company proceeding on Chestnut Street between 15th and 16th Streets in the City of Philadelphia. She was seated on the first lengthwise seat on the right side as it proceeded eastbound on Chestnut Street when, at or about 4:15 P.M., as the bus reached a point between 15th and 16th Streets, it suddenly pulled out of line to the left and made a quick stop causing appellant to strike her face and shoulders on a stanchion. An action in trespass was instituted, for the personal injuries received by her, against Philadelphia Transportation Company and the case was tried before a jury. During the course of the trial, appellant attempted to introduce an alleged statement of the bus driver made some ten or eleven blocks from the scene of the occurrence to the effect that there was another car involved in some way, and that she should see a doctor. This offer was refused by the court.Appellant did not fall from her seat when the sudden stop was made, and

[ 190 Pa. Super. Page 52]

    she testified that nothing happened to the people seated to her left or to anyone anywhere in the bus. At the completion of appellant's case, the trial judge entered a compulsory non-suit which the court below refused to remove. From this action, this appeal was taken.

Appellant urges that error was committed by the court below in refusing to permit her to testify as to alleged statements made by the bus driver and certain passengers in the bus. It is contended that the alleged statement of the bus driver was a part of the res gestae and an exception to the hearsay rule and should have been permitted. However, no foundation was laid for the introduction of the bus driver's statement. It was not shown that the declaration was spontaneous, that it was made in connection with a startling event, that the driver was laboring under the stress of nervous excitement, and that it was made so near the occurrence both as to time and place as to qualify the statement under the res gestae rule. As defined by the Supreme Court in Allen v. Mack, 345 Pa. 407, 28 A.2d 783: "A spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person has just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties. In a res gestae declaration the exciting event speaks through the impulsive words of a participant or onlooker." The bus driver was unhurt and there is nothing to indicate that he was in a state of physical or mental shock. There is nothing to show that the statement was impulsive. The alleged conversation with the driver took place some ten blocks

[ 190 Pa. Super. Page 53]

    from the place where appellant said she was injured. During this time, the bus traveled over eleven busy intersecting streets in rush hour traffic, and the driver permitted the boarding and discharge of passengers.

While it is true that each case must depend upon its own circumstances, and that no fixed measure of time or distance from the occurrence can be established as a rule in determining what shall and what shall not be a part of the res gestae, time must be related in close proximity with the occurrence so as to qualify the declaration as reasonably immediate and not one of considered reflection. See Haas v. Kasnot, 371 Pa. 580, 92 A.2d 171. Under the circumstances involved ...


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