On appeal from judgment of the Essex County Circuit Court.
For the plaintiff-appellee, Jacob W. Silverman (Harry Cohn, of counsel).
For the defendant-appellant, Cox & Walburg (Harry E. Walburg, of counsel).
Before Brogan, Chief Justice, and Justices Parker and Bodine.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. This is an appeal from a judgment recovered by the plaintiff as administratrix of the estate of her mother, for personal injuries suffered by her deceased mother during life. The injuries in question were occasioned by the deceased having fallen down the stairs of a three-family house in which she lived. This happened at six-thirty o'clock on the morning of December 13th, 1931. The stairs and hallways were unlighted at the time of the occurrence. She died on November 29th, 1932, from other causes, the accident not having brought about her death.
The appeal is argued on two general grounds, first, that reversible error was committed by the trial court in the admission of evidence and, secondly, that it was error to deny defendant's motion for nonsuit and for a direction of verdict.
The decedent was a tenant and lived on the second floor of the house in question. Another tenant, Mr. Gashlin, and his family lived on the first floor. The third floor was unoccupied. At about six-thirty in the morning Mr. Gashlin was
awakened from sleep by hearing a thumping noise outside his door. He went out into the hallway and found Margaret Lynch, the decedent, lying at the bottom of the staircase in an unconscious condition. She was carried into his apartment and remained unconscious until her married daughter, Annie Demeter, was summoned from her own home some distance away. She did not arrive at the scene until an hour and a half later. The testimony challenged is that the daughter, Annie, on her arrival, and seeing her mother in an unconscious condition, screamed, "Oh, mama, what happened to you?" The mother, who all during this interval had been unconscious, regained consciousness momentarily and answered the question of her daughter, saying, "Annie, I missed my step and fell down the stairs." The court admitted this testimony and the appellant argues that its admission constitutes legal error. The appellee defends the admission of the testimony on the ground that it was part of the res gestoe.
It is undisputed that the decedent was unconscious from the time she was found at the foot of the stairs up to the time her daughter, Annie Demeter, arrived and received the mother's reply in answer to her exclamation. Thereafter, without saying any more, decedent lapsed into unconsciousness and remained in that condition for the next twenty-four hours at which time she was taken to the hospital.
Declarations which are thus admitted under the doctrine of res gestoe are exceptions to the hearsay rule. It is difficult, if not impossible to lay down a legal principal that would cover each and every situation in which the res gestoe rule might be applied. The term itself is defined as "a statement or exclamation by an injured person, immediately after the injury, declaring the circumstances of the injury, or by a person present at such an occurrence." 3 Wigmore on Evidence, § 1746. It is the spontaneous statement or exclamation of such person usually made at the time of the happening. There are certain well recognized exceptions to this rule as to the time ...