Riley v. WeigandRiley v. Weigand
The plaintiff appeals from a judgment of dismissal entered by the Essex County Court, Law Division, at the conclusion of the trial of her negligеnce action.
The following facts emerge from our review of the record: The accident occurred on December 14, 1949, at about 5:30 P.M., shortly after the plaintiff‘s decedent had alighted from an automobile at a point about opposite the home of the plaintiff‘s decedent, 45 Bay Avenue, Bloomfield, New Jersey, and approximatеly midway between Mill Street and Broughton Avenue. Bay Avenue is a county highway 35 to 40 feet in width, uncurbed at that point, having an asphalt paved surface and a white center line. Darkness had set in. An overhead incandescent street light on a pole in front of plaintiff‘s home was lighted. The left side of the decedent, who was 53 years of age, had been paralyzеd for about eight years and he walked with the aid of a cane. One Robert Clendinning, who was operating his automobile in the rear of three cars, all travelling at a speed of approximately 15 miles per hour in an easterly direction on Bay Avenue, observed the decedent on his side of the road as he turned to come down a grass embankment extending from the sidewalk to the road “and go in the back of my car.” Mr. Clendinning had gone about 30 feet beyond the decedent when he heard a noise, and returning found Mr. Riley approximately two feet north of the center white line, attempting to arise. He and the driver of a car that had been following him assisted Mr. Riley into his home. There is a curve in the road at the point where the accident occurred. The car immediately preceding Mr. Clendinning by about 10 or 15 feet obstructed his view of the east lane of traffic, but not as to cars coming in the opposite direction; that when he was about 150 feet away from the scene of the accident, he first observed Mrs. Weigand‘s car coming in the oppositе direction and it was being operated at a slow rate of speed. Mrs. Weigand was travelling about 12 to 15 miles per hour in a westerly direction
The plaintiff contends that (1) the trial court erred in entering a judgment of dismissal against the plaintiff and in favor of the defendant; and (2) that the trail court erred in refusing to permit the police officer to testify what the decedent stated as to how the accident occurred.
It seems to us that, at best, the evidence does nothing more than establish the occurrence of an accident. But, as was stated by Mr. Justice Case, in McKinney v. Public Service Interstate Transp. Co., 4 N.J. 229 (1950), at p. 241:
“The merе showing of an accident causing the injuries or death sued upon is not alone sufficient to authorize an inference of negligence;
negligence is a fact which must be shown; it will not be presumed. McCombe v. Public Service Railway Company, 95 N.J.L. 187 (E. & A. 1920); Church v. Diffany, 124 N.J.L. 100 (E. & A. 1939); Oelschlaeger v. Hahne & Co., 2 N.J. 490 (1949). To establish a case of negligence and fix liability upon a defendant it is incumbent upon the plaintiff to prove some fact which is more consistent with negligence than with the absence of it. Alvino v. Public Service Railway Co., 97 N.J.L. 526 (E. & A. 1922); Grugan v. Shore Hotels Finance and Exchange Corporation, 126 N.J.L. 257 (E. & A. 1940).”
The “mere scintilla” of evidence rule does not prevail in this State. To grant a motion of dismissal, the trial judge is not restricted to an utter absence of all evidence of a contradictory purport. Gentile v. Public Service Coordinated Transport, 12 N.J. Super. 45 (App. Div. 1951). Of course, the court must necessarily accept as true all evidence which supports the view of the pаrty against whom the motion is made and must give him the benefit of all legitimate inferences which are to be drawn therefrom in his favor. McKinney v. Public Service Interstate Transp. Co., supra. Where fair-minded men might differ as to the conclusions to be drawn from the facts, whether controverted or uncontroverted, the question at issue should be submitted to the jury. Schwartz v. Rothman, 1 N.J. 206 (1948); Antonio v. Edwards, 5 N.J. 48 (1950). However, where there are no disputed facts or disputed inferenсes to be drawn from the uncontroverted facts, it devolves upon the court to declare the judgment which the law imposes. Kaufman v. Pennsylvania Railroad Co., 2 N.J. 318 (1949).
The undisputed evidence establishes that after decedent had alighted from the automobile of his co-worker, he waited on the grass embankment on the south side of Bay Avenue until the car of Mr. Clendinning had passed and then started аcross the street in back of his car; in the meantime, the automobile of Mrs. Weigand was closely approaching him on the north side of the street; the cars of Mrs. Weigand and Mr. Clendinning had just about passed each other when both of them heard the noise caused by the collision of the decedent and Mrs. Weigand‘s automobile; the noise, from
The plaintiff further contends that the court erroneously refused to permit police officer Reeves to testify as to a statement made by the decedent to him. The record is not clear as to the length of time that elapsed between the accident and the statement made to the police officer. However, these facts are undisputed: Mr. Clendinning had stopped his car about 30 feet beyond the point of the accident, returned to the scene, assisted the man into the kitchen of his home; that he then telephoned the police and when he had returned, the deceased had been moved into his bedroom; that as a result of his call, the police officer, who at the time of the accident was approximately two blocks away from the scene, received a codе signal, went to the scene and into Mr. Riley‘s home; that, observing Mr. Riley‘s condition, he telephoned
The term ”res gestae” means things done in and about as a part of the transaction on which the litigation in hand is based, or matters incidental to the main facts and explanatory thereof, including acts and words which are so closely connected therewith as to constitute parts of the transaction and withоut the knowledge of which the main facts might not properly be understood; and, as it is used in the law of evidence, the term more particularly signifies those circumstances which are the undesigned incidents of a particular litigated act, and which may be shown in evidence as explanatory of such act or as showing a motive for acting. Before admitting аn utterance as a part of the res gestae, the trial judge must decide the preliminary question of whether the declarant has had any opportunity for deliberation and reflection, or whether the utterance was a spontaneous one. 9 Blashfield‘s Cyclopedia of Automobile Law and Practice, part 2, sec. 6251, pp. 714, 715. The matters for him to consider are the element of time, the circumstances of the accident, the mental and physical condition of the declarant, the shock produced, the nature of the utterance, whether against the interest of the declarant or not or made in response to questions or involuntary, and any other material facts in the surrounding circumstances. These matters аre all to be weighed in determining the basic question, whether the utterance was spontaneous and unreflective and made under such circumstances as to indicate absence of opportunity
It is interesting to note the varying circumstances under which this rule has been considered and applied by our New Jersey courts in several fields of jurisprudence. For instance, in the field of negligence law, in the case of Trenton Passenger Ry. Co. v. Cooper, 60 N.J.L. 219 (E. & A. 1897), it was held that “ejaculatory” words uttered by plaintiff when his horse put his foot on a rail and received shock from electricity therein, causing him to become uncontrollable and run away, injuring horse and occupant of carriage, were held to be admissible as res gestae as “words spoken while an affair is in progress.” In Blackman v. West Jersey & Seashore R.R. Co., 68 N.J.L. 1 (Sup. Ct. 1902), the statement of a trolley car conductor made very shortly after an accident, in response to her question as to what the conductor had said when he came to her assistance, was held inadmissible, on the ground that it was merely narrative of a past occurrence. In Demeter v. Rosenberg, 114 N.J.L. 55, 57, 58 (Sup. Ct. 1934), the statement of a woman who had fallen downstairs and had become unconscious, made immediately upon her return to consciousness, as to what had happened, was held to be admissible. In Anastasio v. Rast, 128 N.J.L. 426 (Sup. Ct. 1942), statement made by fatally injured motorcyclist to police officers about one-half
We find the rule also discussed in the following workmen‘s compensation cases: in Murphy v. Brown & Co., 91 N.J.L. 412 (Sup. Ct. 1918), statements made by injured employee to fellow employees as to cause of accident immediately after its occurrence and before and during time his fingers were being bandaged, were held to be admissible. In Slayback Van Order Co. v. Eiben, 115 N.J.L. 17 (Sup. Ct. 1935), a statement of injured employee to co-worker immediately after accident that his eye had been injured by a wrench he was using, was held to be admissible. In Gilbert v. Gilbert Machine Works, Inc., 122 N.J.L. 533 (Sup. Ct. 1939), it was held that statements made to a physician as to cause of injury were held incompetent as were conversations by the employee with his wife. In Rainess v. Grant Finishing Co., Inc., 133 N.J.L. 611 (E. & A. 1946), prior statements madе as to purpose of proposed trip were held to be admissible. In Andricsak v. National Fireproofing Corp., 3 N.J. 466 (1950), where a statement made by an injured employee was held inadmissible on the ground that it was made subsequent to the happening of the injury.
“In Hunter v. State, 40 N.J.L. 495 (E. & A. 1878), Chief Justice Beasley approves the language of Wharton (page 538): `The res gestae may therefore be defined as those circumstances which are the undesigned incidents of a particular litigated act * * * not produced by the calculated policy of the actors\‘; and again, at page 540, he justifies the admission of the declarations there under consideration as `the natural and inartificial concomitants of a probable act, which itself was a part of res gestae. In such a status of the evidence, I should think that the exception to the principle that rules out hearsay had been carried to its extreme limit, but without transcending such limit.\‘”
In many cases in the field of criminal law, this rule has also been passed upon. The leading case is Hunter v. State, 40 N.J.L. 495 (E. & A. 1878), wherein statements made by the victim to his son and a note written to his wife a few hours before leaving home on the night of the murder, informing them that he was going to Camden on business accompanied by defendant, were held to be admissible. In State v. Kane, 77 N.J.L. 244 (Sup. Ct. 1909), conversations alleged to have been had by defendant the night before murder with a friend, arranging to meet him the following morning to attend church together, were held admissible. In State v. Ehlers, 98 N.J.L. 236 (E. & A. 1922), a voluntary statement to police immediately after killing his wife and child when he surrendered, that he had killed his child and his wife was held to be admissible. In State v. Doro, 103 N.J.L. 88 (E. & A. 1926), “exclamation” by bystander, pursuing defendant, after she had witnessed the murder committed by defendant, that “he has just murdered somebody; catch him,” was held to be admissible. In State v. Then, 118 N.J.L. 31 (Sup. Ct. 1937), affirmed 119 N.J.L. 429 (E. & A. 1938), conversations of defendants relating to unlawful conversion of securities of bank of which defendants were directors held to be inadmissible. In State v. Stephan, 118 N.J.L. 592 (E. & A. 1937), conversations between police officers assisting victim out to the police car, occurring five or six minutes after the shooting, wherein the injured man stated what had happened, were held to be admissible, as “part of the immediate * * * emanations of such act, and are not produced by the calculated policy of the actors.”
Our review of the foregoing cases satisfies us that the prevailing New Jersey rule may be epitomized in the language of Mr. Justice Oliphant, in Andricsak v. National Fireproofing Corp., supra, at p. 469, wherein he stated:
“While the time elapsing between the act and the declaration is not of itself the controlling feature, the act must be so naturally and strongly connected as to impress upon the statement the element of truth; the declaration must be made without any element of artificiality; it must be made naturally and not too distant in point of time so that by its very quality and texture it tends to disclose the truth.”
In the final analysis, whether the rule is applicable must be resolved by the facts and circumstances of each case where its invocation is attempted. Here, the declaration lacked the element of spontaneity, it was not concomitant with the main fact under consideration nor so connected with it as to illustrate its character. It was merely narrative of a past occurrence and cannot be received as proof of the character of that occurrence.
The judgment is affirmed, without costs.