Dolberg v. Pacific Electric Railway Co.

California Court of Appeal Jul 13, 1954 No. Civ. 19908Published

Before: Drapeau

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Holding. The court held that the trial judge did not abuse his discretion in determining that the motorman's statements were inadmissible hearsay rather than part of the res gestae, as they were not sufficiently spontaneous and were made after enough time had passed to allow for deliberate design. Consequently, the order granting a new trial was affirmed.

Issues

Whether the trial court erred in excluding the motorman's statements to a police officer as hearsay rather than admissible res gestae evidence.
Whether the trial court abused its discretion in granting a new trial based on the determination that the statements were not spontaneous.

Disposition. affirmed

Quotations verified verbatim against the opinion

“This court finds no abuse of discretion in that ruling.”

DRAPEAU, J.

Plaintiff, Sam Dolberg, was driving his Chevrolet panel truck across the right of way of defendant, Pacific Electric Company, when he was struck by defendant’s two-car electric train. Plaintiff’s action for damages, tried by a jury, resulted in a verdict for defendant.

The trial court determined it was error in law to have permitted testimony of statements made by the motorman of defendant’s train to a police officer. For that reason plaintiff’s motion for a new trial was granted. Pacific Electric Company appeals from the order granting a new trial.

Whether or not this testimony was hearsay or was admissible under the res gestae rule is the only question for decision in this case.

The officer and his partner were notified of the accident at approximately 6 :50 p. m. They arrived at the scene at approximately 6:55 p. m. No one testified as to the exact time of the accident.

Five or ten minutes after his arrival the officer found the motorman of the train, and talked with him. Over plaintiff’s objection the officer stated in detail what the motorman told him. The officer testified that the motorman said, “He estimated that his speed at the time was approximately 25, and he felt that the car was going about 25 to 30. He noticed at that time that the car was skidding, appeared to be stopping; and just as it came to a stop on the tracks the train hit it. He estimated that his speed at the time was approximately 15 miles an hour on impact. ’ ’

The officer further testified that the motorman told him that “he hit his emergency air brakes” as soon as he saw the automobile approaching and that he felt that he was doing approximately 25 miles an hour as he approached the intersection.

Without repeating all of the hearsay, it may fairly be said that the testimony of this witness, corroborative of the motorman’s testimony on the trial, must have materially added to the weight of defendant’s case with the jury.

Pacific Electric Company relies upon the leading case of

Showalter

Western Pacific R. R. Co.,

16 Cal.2d 460 [106 P.2d 895]. In that ease the California rule first

[489]

Dolberg v. Pacific Electric Railway Co.

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DRAPEAU, J.

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