154 A. 795 | Pa. | 1931
These two appeals are in actions brought by a husband and wife against the Pittsburgh Railways Company, following an accident in which the wife, Gertrude Powe, was injured. Plaintiffs' evidence was to the effect that, on the evening of April 8, 1928, at about 11 o'clock, Mrs. Powe, with two other women, entered the back seat of an automobile facing east on Center Avenue, at its junction with Reed Street, in the City of Pittsburgh. At this point, street cars traveling west or inbound, make a right-hand curve on Center Avenue. While the driver of the automobile was making a left-hand turn on Center Avenue and the rear wheels of his car were about half way between the inbound car tracks and the curb, the automobile was struck in the rear right side by one of defendant company's cars traveling inbound. Plaintiffs' evidence showed that the automobile was badly damaged and Mrs. Powe injured. At the conclusion of the trial, a verdict was rendered in favor of defendant. The court in banc refused a motion for a new trial; these appeals followed.
Appellants present four assignments of error, the first two of which relate to the court's refusal to admit testimony of Arthur Powe and Charles Beck, both of whom were standing on the sidewalk on the opposite side of the street, and, seeing the accident, proceeded immediately to the point of the collision. The rejected testimony concerned a statement made by the motorman when Powe demanded of him why he failed to bring his car to a stop and avoid a collision. It is appellants' contention that the testimony was part of the res gestæ and accordingly improperly rejected. *536
Powe testified "The street car struck the automobile so it knocked it a distance so it ran into it after; knocked it a distance and knocked it again. I was on the curbstone and I ran across to see. After he [the motorman] came out I asked him what was the reason he didn't stop —." At this point defendant's counsel objected and the court sustained the objection. Beck's testimony was: "Q. And did you rush over to where the accident was? A. I did. Q. Did you hear any remarks made by the motorman? A. I did. Q. What did he say?" At this point, defendant's counsel again objected to the testimony as not being within the res gestæ rule, and the court sustained the objection.
It is well recognized that the judicial idea of matters within the res gestæ rule is broader under our American decisions than under the very restricted interpretation employed by English Courts: Chapman on Evidence, page 22. As was said in Hanover R. R. Co. v. Coyle,
The two cases cited by appellee (McMillen v. Strathmann,
The judgments of the court below are reversed and a new trial is granted.