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decided: March 15, 1968.


Appeals from judgments of Court of Common Pleas No. 3 of Philadelphia County, March T., 1960, No. 4184, and Court of Common Pleas No. 6 of Philadelphia County, June T., 1960, No. 61, in case of Dorothy Carney, administratrix of estate of Thomas Carney, deceased v. The Pennsylvania Railroad Company; and Gertrude McGoldrick, administratrix of estate of William McIntyre, deceased v. Same.


F. Hastings Griffin, Jr., with him William J. Kennedy, and Dechert, Price & Rhoads, for appellant.

James E. Beasley, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Jones and Mr. Justice Eagen concur in the result. Mr. Justice Roberts dissents. Dissenting Opinion by Mr. Justice Musmanno.

Author: Cohen

[ 428 Pa. Page 491]

These appeals have their genesis in wrongful death and survival actions instituted against the Pennsylvania Railroad Company. The actions arose out of an accident involving an automobile in which the decedents were passengers and a railroad switching engine owned and operated by defendant. The jury returned verdicts in favor of the plaintiffs in the amounts of $99,300 and $86,800, respectively. Thereupon, defendant filed motions for judgment notwithstanding the verdict and for a new trial in each case. From the denial of those motions defendant has appealed to our Court.

On the question of whether or not defendant is entitled to a new trial, we find it necessary to discuss and analyze only one of a multitude of errors allegedly committed by the court below during the course of the trial. Defendant assigns as error the admissibility of certain testimony given by an ex-police officer who had arrived at the scene a short time after the accident. With respect to the testimony being challenged, the colloquy of the court, counsel and the witness was as follows: "Q. (By Mr. Beasley:) When you arrived there, did you look at the engine to determine whether or not the lights were lit? A. There were no lights on the engine. In fact, I was informed by a witness who had been standing -- Mr. Griffin: I object to this, Your Honor. I object to what he was informed by somebody. The Court: Sustained. By Mr. Beasley: Q. How soon after you got there did you see this witness? A. Immediately. When I seen the boys laying

[ 428 Pa. Page 492]

    on the highway -- I think there were four of them laying on the highway. Q. At that time, what was this witness? Did he come up to you very calmly? A. No, no. Q. Don't tell us what he said. A. He came running up to me, very agitated. And he informed me as to what he had seen."

[At this juncture a discussion occurred at sidebar between the court and counsel concerning the admissibility of the statement made by the unidentified bystander to the police officer after the accident. This discussion commenced on Thursday, March 31, 1966, continued into Friday, April 1 and was not finally determined until Monday, April 4, at which time the police officer was permitted to testify, over objection, as to the statement made to him by the bystander.]

The police officer then testified as follows: "Q. Tell the members of the jury what you observed about the lighting conditions on the engine. A. Well, the engine headlight was out. There was no light on the headlight. And, of course, after I got out of the car, a gentleman run up to me and excitedly said to me that this car, this engine, had come out fast and that it had no lights on it. And this again called it to my attention. But I explained to the man that I had a job to do, for him to stand on the side, that I wanted to get these victims to the hospital . . . Q. Can you identify or did you get the name of the man who came up to you and said that the engine came out of the pier without any light, and fast? A. No. Immediately after I had got these bodies or these victims into the -- seeing that they had been on the way to the hospital, I walked over to a group of men who were standing there and asked who was the engineer."

There is no serious dispute that the statement of the unidentified bystander clearly amounted to a hearsay declaration, since it was proffered solely for the

[ 428 Pa. Page 493]

    purpose of proving the truth of the matter asserted, i.e., the engine came out too fast and had no lights on it. See 6 Wigmore, Evidence § 1746 (3d ed. 1940). Therefore, in order for this testimony to be properly admitted in evidence, the proponent of such testimony must point to some exception to the hearsay rule which would justify the court in departing from the traditional notion that a party should not be deprived of the guaranty of truthfulness resulting from the oath of the declarant and the opportunity to cross-examine the declarant in order to test the accuracy of the observations upon which it was based. In the instant case plaintiffs rely upon the so-called res gestae exception to the hearsay rule in support of the admissibility of the alleged statement made by the unidentified bystander.

In Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783 (1942), our Court enunciated a number of factors which, if present, would justify the admission of out-of-court statements under the doctrine of res gestae. In Mack the Court remarked: "A res gestae declaration may be defined as a spontaneous declaration by a person whose mind has been suddenly made subject to an over-powering 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. It is in a psychological sense a part of the act itself. The apparent condition of the declarant's mind when the declaration is made is the test of the latter's admissibility as a

[ 428 Pa. Page 494]

    part of the res gestae. To make the declaration admissible the state of the declarant's mind as induced by the shock of the occurrence must be such as to integrate his spontaneous declaration exclusively with the occurrence itself." (Emphasis supplied.)

As indicated in Mack, obvious reasons dictate that hearsay statements proffered under the res gestae exception must appear to have been made by a declarant who has had an opportunity to observe personally the event or occurrence he is describing. See 6 Wigmore, Evidence § 1751 (3d ed. 1940); Note, 127 A.L.R. 1030, 20 Am. Jur. Evidence, § 674, 570. Consequently, the facts as disclosed by the record must indicate that the declarant actually witnessed the event to which his statements relate.

In Beck v. Dye, 200 Wash. 1, 10-11, 92 P. 2d 1113, 1117 (1939), the Supreme Court of Washington was confronted with a directly parallel factual situation involving the same legal question with respect to the application of the res gestae exception to the hearsay rule. In reversing the court below and ordering a new trial on the basis that declarant's utterances did not properly fall within the purview of the res gestae exception, the Court reasoned as follows: "It is purely a matter of speculation whether they themselves observed the condition of the signal light or were even in the vicinity when appellant drove into the intersection. For aught that the record discloses, they may have been repeating merely what others had told them, or perchance reconstructing the initial occurrence from what they finally saw. The evidence was not admissible as a part of the res gestae, in the absence of ...

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