Potter v. Baker

• Decision Date: 02 February 1955
• Docket Number: No. 33954,33954
• Parties: , 53 A.L.R.2d 1234, 55 O.O. 389 POTTER, Appellee and Cross-Appellant, v. BAKER, Jr., Appellant and Cross-Appellee.
• Court: Ohio Supreme Court

Page 488

162 Ohio St. 488

124 N.E.2d 140, 53 A.L.R.2d 1234, 55 O.O. 389

POTTER, Appellee and Cross-Appellant, v. BAKER, Jr., Appellant and Cross-Appellee.

No. 33954.

Supreme Court of Ohio.

Feb. 2, 1955.

Syllabus by the Court.

1. Testimony of a witness as to a statement or declaration by another person is hearsay testimony where that statement or declaration is offered or used only to prove the truth of the matters asserted therein.

2. Such testimony as to a statement or declaration may be admissible under an exception to the hearsay rule for spontaneous exclamations where the trial judge reasonably finds (a) that there was some occurrence startling enough to produce a nervous excitement in the declarant, which was sufficient to still his reflective faculties and thereby make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, and thus render his statement or declaration spontaneous and unreflective, (b) that the statement or declaration, even if not strictly contemporaneous with its exciting cause, was made before there had been time for such nervous excitement to lose a domination over his reflective faculties, so that such domination continued to remain sufficient to make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, (c) that the statement or declaration related to such startling occurrence or the circumstances of such startling occurrence, and (d) that the declarant had an opportunity to observe personally the matters asserted in his statement or declaration.

3. Where defendant's automobile, immediately after proceeding through an intersection governed by a traffic light, struck plaintiff who was crossing the street upon which defendant was driving and rendered plaintiff unconscious; where plaintiff testified that, on regaining consciousness and shortly before she again lapsed into unconsciousness, she heard an unidentified man standing near her state, 'God, he rushed the light'; where the evidence is such as to justify a reasonable inference that there may have been a sufficient lapse between the time that plaintiff was struck and the time of such statement so that there could have been one or more traffic light changes; where the evidence shows that before the accident other automobiles were passing or waiting to pass through such intersection in both directions on each of the intersecting streets; and where there is no other evidence tending to prove that anyone who might have made such statement had an opportunity to observe personally whether defendant's automobile rushed the light; the decision of the trial judge, refusing to permit the plaintiff to testify that such unidentified man stated, 'God, he rushed the light,' will not support the reversal of a judgment rendered on a verdict for the defendant.

Plaintiff, an elderly lady, instituted this action in the Common Pleas Court of Cuyahoga County to recover for personal injuries sustained when she was struck by defendant's automobile while she was crossing East 107th Street from west to east on the north side of Euclid Avenue in Cleveland.

Defendant had been traveling north on East 107th Street and testified that when he reached Euclid Avenue he stopped because the traffic light at the intersection displayed a red light for traffic on that street.

Plaintiff testified that, when she started to cross East 107th Street, the light for Euclid Avenue traffic was green and traffic was moving east and west on Euclid Avenue; that, in crossing, she had to go behind a mounted policeman whose horse was straddling the crosswalk and behind an automobile which was stopped on the crosswalk and was somewhat to the east of the center of East 107th Street; that, as she went behind this stopped automobile traffic was still moving east and west on Euclid Avenue; and that, before she stepped from behind the stopped automobile, she looked both ways on East 107th Street and, seeing no traffic moving, took one step diagonally back onto the crosswalk and two steps on the crosswalk, when she saw defendant's approaching automobile.

Plaintiff was apparently struck by the left of defendant's car and thrown to the pavement somewhat north of the crosswalk and to within about one to two feet from the east curb of East 107th Street. Defendant's automobile stopped about a foot north of the crosswalk.

It was agreed that the testimony disclosed that the accident occurred at 'approximately' 11:30 a. m., and the hospital record states that plaintiff was admitted to University Hospital, about one-half mile away, at 11:40 a. m.

During her direct examination, plaintiff testified as follows:

'Q. What was the first thing that you realized upon returning to consciousness? A. The pain.

'Q. Well, what pain? Where? A. In may arm, first.

'Q. And what was the next thing you realized? A. I think I realized some people were talking, on the curb, very close to me.

'Q. Do you know who they were? A. No. Never saw them before.

'Q. Well, were they men or women or who? A. Two men.

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'Q. How close were they to you? A. I don't think I can measure that, offhand.

'Q. Well, would you say two feet, three feet, or what? A. Well, my feet were setting up, or sort of out, and there was a small space between me and the curb, from my feet. And maybe a foot. Something like that.

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'Q. Where were the men standing, in relation to your body? A. Right on the curb, here.

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* * * 'Q. Now did any of those--did those men say anything to you?

'* * * A. Yes, they were talking. Not to me.

'Q. To whom were they talking? A. They were talking to themselves.

'Q. What did you hear them say?'

Defendant's objection to this question was sustained. The record discloses that, if she had been permitted to answer, plaintiff would have said that 'she heard one man say to the other 'God, he rushed the light."

Thereafter plaintiff testified as follows:

'Q. Now this remark or conversation between these men, that you heard, was when, in relation to the time of the accident?

'* * * A. It was after I was lying down there, and came to. That is, I was conscious.

'Q. What next did you hear?

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'Q. What next did you realize? A. I realized that they were talking behind me, and I also heard many----

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'Q. You also heard a remark? A. I also heard a remark, but I don't know who said it.

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'Q. And that was made right at this time? A. Yes, sir.

'Q. After you came out of----. A. Yes.

'Q. --out of consciousness? A. That is right.

'Q. And I want to put that again, as to what remark did you hear * * *.'

Defendant's objection to this question was sustained. The record discloses that, if she had been permitted to answer, plaintiff would have said that 'she heard someone say 'I never saw her."

Thereafter, plaintiff testified as follows:

'Q. What next did you realize? A. Someone stepped off the curb and picked up my articles that had been thrown quite a distance from me.

'Q. Where did they put them? A. There was the bone meal, and the bulbs and my glasses, and my purse.

'Q. I say, where did they put them? A. They put them next to me.

'Q. And after that, what was the next thing you realized? A. I heard somebody talking behind me, and calling the police, and I also--and then they were there very shortly after that, someone came to lift me off the pavement. But I hadn't moved, because I knew that I had better not, with the pain in the hip, and also the pain in the leg and the arm. So they were very careful, lifting me. And after that, just lifting me caused me to be unconscious for a few minutes. And then after that, I don't remember exactly what I said, but I remember I said something to them and then as they lifted me further, I became unconscious again, and didn't recognize anything until I was in the emergency there at the hospital.

'Q. Did anybody pay any attention or take any care of you while you were lying there on the pavement? A. Yes, sir, there was. Before they took me, there was a lady that came up to the curb, looking at me, I was shivering and she took her coat off and covered me with her coat as best she could.

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'Q. Did you see anyone else around there while--after you came to, became conscious, and while you were lying on the pavement? A. No, except I sensed that there were people there and talking.'

The jury returned a verdict for the defendant and judgment was rendered thereon.

On appeal to the Court of Appeals, that judgment was reversed for error 'in excluding evidence of exclamation of bystander constituting part of res gestae.'

The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of defendant's motion to certify the record.

Baker, Hostetler & Patterson and William L. Calfee, Cleveland, for appellant and cross-appellee.

McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, Cleveland, Douglas Wick, Gates Mills, and H. V. E. Mitchell, Cleveland, for appellee and cross-appellant.

TAFT, Judge.

In determining whether the Court of Appeals' judgment should be affirmed, for the reasons stated in its order of reversal, the question is whether the Common Pleas Court erred in sustaining defendant's objection to the proffered testimony of plaintiff that a bystander had stated, 'God, he rushed the light.' The exclusion of the statement of a bystander that 'I never saw her' has not been relied upon by plaintiff in arguing that the judgment of the Court of Appeals should be affirmed. That latter statement would be relevant only if made by defendant. His testimony is in substantial accord with that statement. Hence, there could have been no prejudice to plaintiff in excluding evidence that he made it.

The statement of the bystander, 'God, he rushed the light,' was obviously only relevant in the instant case on the inquiry as to whether defendant...