(concurring).
There are two serious problems in the case: one is whether the evidence of Corporal Filer of the Pennsylvania State Police regarding the statements made to him by the riding master, Armogost, was admissible; the other is whether, with Filer’s testimony admitted, there would be enough evidence to warrant submission of the case to the jury. On both questions the evidence is extremely meager and unsatisfactory, and there can be no doubt that on a new trial the interests of justice will be well served by affording the parties an opportunity to develop the evidence more fully.
On the first question, despite the meagemess of the record on why the defendant, Mrs. Crist, took Corporal Filer to meet Armogost, I believe the proffered evidence should not have been excluded as a matter of law. Rather, it seems to me, the evidence should have been submitted to the jury with instructions by the court that the jury should consider it only if it determined from the surrounding circumstances that Mrs. Crist intended that Armogost’s statement should be considered as an explanation on her behalf, through her employee familiar with the facts, of what had happened.
If the jury determined that the testimony of Corporal Filer should be considered on the merits, although the evidence is extraordinarily sparse, I believe there is enough to have required submission of the case to the jury. Plaintiffs entrusted their young daughter to the defendants who operated a camp for children and advertised that they specialized in riding instructions and had carefully selected their horses for their gentleness and suitability for use by children. Pennsylvania, of course, does not apply in a case such as this either the doctrines of res ipsa loquitur or exclusive control. But the evidence of Corporal Filer and that of the other witnesses referred to in Judge Ganey’s opinion shows that the horses were at the watering place with no apparent supervision and that it was there that the decedent was kicked and killed by a horse which had already been shown to exhibit a vicious temper.
I therefore join in the decision to reverse and award a new trial.