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Rogalsky v. Plymouth Homes Inc.

Decided: April 30, 1968.

WILLIAM J. ROGALSKY, PLAINTIFF-APPELLANT,
v.
PLYMOUTH HOMES, INC., A CORPORATION OF NEW JERSEY, AND WALTER H. SMITH, DEFENDANTS-RESPONDENTS



Gaulkin, Lewis and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D.

Kolovsky

Plaintiff appeals from the judgment for defendants entered on a jury verdict of "no cause for action" in an automobile negligence action.

Three of the four points argued by plaintiff charge error in the admission of evidence. We agree that the challenged evidential rulings were erroneous and find that the impact thereof was so prejudicial as to mandate, in the interest of substantial justice, cf. R.R. 1:5-3(b), a reversal and remand for a new trial.

The case was tried before the effective date of the pertinent Rules of "The Evidence Act, 1960" (hereinafter referred to by Rule number). However, in the respects here involved, the Rules effected no change in the preexisting law.

The collision between plaintiff's northbound Volkswagen automobile and the southbound flat-bed lumber truck owned by defendant Plymouth Homes, Inc. and driven by its employee, defendant Smith, occurred on U.S. 206, a two-lane highway in Stanhope, Sussex County. The basic factual dispute related to the point of impact, whether on the northbound or southbound half of the road. Plaintiff and Smith each testified that the other came over onto the wrong side of the center lane.

Only two other witnesses testified on the issue of liability. A Mr. Walters, who had been driving northerly some 200 feet behind plaintiff's auto, did not see the actual impact but testified that prior thereto plaintiff "was in his own lane" and that defendant's truck, when some 500 to 700 feet from Walter's vehicle, was on the white line and appeared thereafter to be "going over the white line" into the northbound lane.

The other witness was the police chief of Stanhope. He had learned of the collision by "police radio from Morris County" and had proceeded to the scene some five or six

blocks away. It was during the Chief's testimony that all the criticized evidential rulings were made.

The first of those rulings permitted the Chief to relate, in response to a question of defendants' attorney, that defendant Smith, when questioned at the scene after plaintiff had been removed to the hospital, had told the Chief

"that he was proceeding south on 206 and this Volkswagen was proceeding north and seemed to slowly edge its way over into the left-hand lane. He pulled to the right to avoid a head-on automobile accident and the Volkswagen just seemed to continue on to the truck and he said that when the Volkswagen sideswiped the truck that he immediately pulled off the edge of the road and parked his vehicle."

The court overruled plaintiff's objection to the recital of defendant's self-serving statement, holding it admissible as part of the res gestae. The court erred. The statement was not admissible under the "spontaneous declaration" or "res gestae" exception to the hearsay evidence rule. See Riley v. Weigand, 18 N.J. Super. 66, 73 (App. Div. 1952); Lieberman v. Saley, 94 N.J. Super. 156, 161 (App. Div. 1967); Anastasio v. Rust, 128 N.J.L. 426, 428 (Sup. Ct. 1942); cf. Rule 63(4), Rules of Evidence.

Defendant Smith's statement was a mere narration of past events; a response to the police officer's questioning. The record would not support ...


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