Irene B. WABISKY, Individually and as Ancillary Administratrix of the Estate of Joseph L. Wabisky, deceased, Appellant, v. D. C. TRANSIT SYSTEM, INC., a corporation, Appellee

United States Court of Appeals for the District of Columbia Circuit1962-10-25No. No. 16884

309 F.2d 317

Summary · law.co

Holding. The court reversed the directed verdict and remanded for a new trial, holding that the evidence presented was sufficient to permit a jury to consider whether the defendant had a last-clear-chance to avoid the accident, and that the trial court erred in excluding hearsay testimony from the motorman and in withdrawing the case from the jury.

A streetcar operator struck a pedestrian who was standing near the tracks facing away from the oncoming vehicle. The trial court granted a directed verdict in favor of the transit company, concluding that the plaintiff had failed to establish a case under the last-clear-chance doctrine. The appellate court found that the evidence presented was sufficient to allow a jury to find the decedent was in a position of danger when first observed by the operator at a substantial distance, and that the operator sounded a warning signal as the car approached before impact occurred.

The court addressed two evidentiary issues central to the reversal. First, it held that a police officer's testimony regarding statements made by the motorman at the accident scene was properly admissible under multiple exceptions to the hearsay rule, including as an excited utterance and as an admission against interest. The court rejected reliance on an outdated precedent and applied more contemporary hearsay analysis. Second, it determined that both the officer's account of the operator's statements and a passenger's eyewitness observations presented questions of weight and credibility that belonged exclusively to the jury, not the trial judge.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Admissibility of excited utterances and statements against interest under hearsay exceptions
Whether evidence sufficed to submit last-clear-chance doctrine to jury
Proper allocation of weight and credibility determinations between judge and jury

Procedural posture

The appellant appealed a directed verdict granted by the District Court in favor of the transit company at the close of plaintiff's case in a wrongful death action.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

BURGER, Circuit Judge.

The District Court granted a directed verdict in favor of appellee at the close of appellant’s case, holding that appellant had not made out a case, under the last-clear chance doctrine, for recovery for the death of appellant’s decedent.

As we read the record the evidence offered by appellant was sufficient to warrant a jury in finding that when first seen by appellee’s motorman, the decedent was a substantial distance in front of the streetcar, facing away from the streetcar, near the track and in a position of danger or potential danger. As the car approached, the operator sounded a warning signal. The operator was next aware that something was amiss when the decedent’s body was heard to bump the streetcar at a point about 7 feet from the front, where the car overhangs 14% inches on either side of the streetcar rails. It is not necessary for us to evaluate the evidence at this time except for the limited purposes of this appeal.

First we hold that the testimony of the police officer as to what the operator said to him was admissible, since it was an utterance made at the scene of the accident within 15 or 20 minutes after the event and while the operator “seemed to be very upset.” The District Court held it admissible as part of the res gestae. There are at least four distinct exceptions to the hearsay rule encompassed by the term res gestae: (1) declarations of present bodily condition ; (2) declarations of present mental state and emotion; (3) excited utterances; (4) declarations of the present sense impression. The declarations of the motorman, related at the trial by the policeman, come within the purview of the excited utterance exception to the hearsay rule. Vicksburg & Meridian Ry. Co. v. O’Brien, 119 U.S. 99, 7 S.Ct. 172, 30 L.Ed. 299 (1886), is relied on by appellee, but that early holding, with four dissents, has been eroded over the years and cannot today be regarded as a statement of contemporary law. See Judge Morris’ discussion in Martin v. Savage Truck Line, Inc., 121 F.Supp. 417 (D.D.C.1954). See also Grayson v. Williams, 256 F.2d 61, 66 (10th Cir. 1958). In addition the statement of the operator made to the police officer investigating the accident is also admissible as an admission against interest or vicarious admission. Koninklijke Luchtvaart Maatschappij NV KLM Royal Dutch Airlines Holland v. Tuller, 110 U.S.App.D.C. 282, 292 F.2d 775, cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed. 2d 136 (1961). See McCormick, Evidence § 244 at 517-19 (1954). There are also other variants of these exceptions generally turning on their independent trustworthiness. Cf. Murphy Auto Parts Co. v. Ball, 101 U.S.App.D.C. 416, 249 F.2d 508 (1957), cert. denied, 355 U.S. 932, 78 S.Ct. 413, 2 L.Ed.2d 415 (1958). Secondly we hold that the testimony of the police officer as to statements made by the operator and the testimony of the passenger of the streetcar as to what he observed were for the jury to evaluate. The weight of this testimony and the credibility were for the jury, not for the court.

Reversed and remanded for a new trial not inconsistent with this opinion.