Before BIGGS, Chief Judge, and KALODNER and HASTIE, Circuit Judges.
In this diversity action,*fn1 arising out of the collision of two automobiles, the jury returned a verdict of "no cause of action" upon which judgment was entered in favor of the defendant. This appeal by the plaintiff from the judgment suffered by her below and the denial of her motion for a new trial, asserts prejudicial errors by the trial judge in the conduct of the trial and his charge to the jury.
The testimony adduced at the trial may be summarized as follows:
On December 13, 1956, at about 1 p. m., plaintiff, Lillie Bailey, was a passenger in an automobile, owned and operated by her husband, which at the time was proceeding in a northerly direction in the extreme right lane of U. S. Route 130, in Pensauken Township, New Jersey. Wilbur H. Branin, now deceased,*fn2 was driving his car in the same lane following the Bailey car.At a point near the Airport Circle, outside of Camden, New Jersey, the front of the Branin car collided with the rear of the Bailey automobile. The roadway was wet at the time.
U. S. Route 130 is a concrete highway. At the place where the collision took place it has four northerly lanes separated by a cement divider from southbound lanes. Of the four northerly lanes, the two to the left carry traffic bound for Newark, New Jersey and New York City, and the two to the right go over a ramp which takes traffic on a long curve leading to a highway proceeding westwardly to Camden, New Jersey and Philadelphia, Pennsylvania. The accident occurred at the approach to the entrance to the ramp.
Bailey testified that while he was driving his car at a speed of about 25 or 30 miles an hour, bound for Camden, he was struck by the Branin car. A plaintiff witness, Joseph F. Silver, a Pensauken Township police officer, who arrived at the scene "within a matter of minutes" after the accident, having been summoned by Bailey and Branin, testified that in his interrogation of the two drivers, Branin told him that when he observed Bailey's car "slowing or stopping that he attempted to stop, and due to the road being wet, he could not stop quick enough without hitting them." On crossexamination Silver testified Bailey told him that "he realized that he was in the wrong lane to go to New York" and that while "he was stopping" he was hit by the Branin car. Bailey categorically denied having made the statements attributed to him by Silver.
The admission of Silver's testimony as to Bailey's statements is one of the points raised by the plaintiff on this appeal. She contends that it is barred by the "hearsay rule" and cannot be regarded as part of the res gestae.
We do not subscribe to plaintiff's contention. Officer Silver arrived at the scene of the accident "within a matter of minutes" and, as we said in Benincasa v. Saia, 3 Cir., 1956, 238 F.2d 561, at page 565:
"From the facts the trial court may well have considered it [a statement made by the defendant driver to a police officer some ten minutes after the accident] part of the res gestae."
It is indeed impossible to reconcile plaintiff's adducing Silver's testimony as to what Branin had said to him and her insistence that the trial judge erred in permitting Silver to testify as to Bailey's statement at the same time.
A second point presented relates to the following instruction to the jury by the trial judge in his charge:*fn3
"Negligence cannot be imputed because of the failure to perform a duty so suddenly and unexpectedly arising that there is not opportunity to apprehend the situation and act accordingly."
Plaintiff's counsel filed exception to this instruction at the close of the charge, on the ground that it "failed to indicate to the jury that the emergency doctrine could only be applicable in the event that there was no ...