I am unable to agree with the majority opinion that the testimony of officer Floyd I. Green, relative to statements made by a bystander that "he [appellant] went through the red light," was not admissible as part of the res gestae, under the facts in this case, and I therefore dissent from the majority opinion.
Officer Green was only a short distance from the accident at the time it happened, and came upon the scene while respondent was still lying in the street, where she had been struck by appellant's car. Officer Green, with the help of appellant, placed respondent in the car, and at that time, in response to a question asked by Green, the above statement was made, by a bystander unknown to Green.
The majority opinion states that such testimony, to be admissible, must possess the following elements: *Page 13
"(1) The statement or declaration made must relate to the main event and must explain, elucidate, or in some way characterize that event; (2) it must be a natural declaration or statement growing out of the event, and not a mere narrative of a past, completed affair; (3) it must be a statement of fact, and not the mere expression of an opinion; (4) it must be a spontaneous or instinctive utterance of thought, dominated or evoked by the transaction or occurrence itself, and not the product of premeditation, reflection, or design; (5) while the declaration or statement need not be coincident or contemporaneous with the occurrence of the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation; and (6) it must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which the declaration or statement was made."
The majority opinion concedes that the evidence offered possessed the essentials of the first five requirements, but is lacking in the sixth essential.
I agree with the majority opinion as to the essential elements set out in the first five requirements, and I also agree that the rule assumes that any such statement, to be admissible, must be made by one who saw or participated in the accident.
The majority opinion states that it was not shown, nor is there evidence from which it reasonably can be inferred, that the person who is purported to have made the statement saw appellant drive through the red light. It is true there is no positive statement by declarant that he witnessed the accident, other than the statement, "He went through the red light," but, keeping in mind that all the essential elements set out in the majority opinion were present, unless it be that it does not appear that declarant saw appellant drive *Page 14 through the red light, I am forced to the conclusion that at least it is a reasonable inference that declarant saw the act that he described, and that the statement was therefore properly submitted to the jury.
The following rule is announced in 3 Jones Commentaries on Evidence (2d ed.), 2220, § 1209:
"It is true that the language in a few cases would seem to deny, or cast doubt upon, the admissibility of declarations, as part of the res gestae, of mere bystanders who are non-actors. But, as we have stated, the majority of cases clearly hold that declarations of mere bystanders are admissible when properly meeting the general requirements of the doctrine." (Italics mine.)
The theory on which statements of this character are received is stated in Jones on Evidence, supra, at p. 2223, § 1210:
"The theory upon which res gestae declarations of the type here under discussion are admitted in evidence without the sanctity of an oath is that such declarations derive their credibility from the stress of circumstances under which they are made and not from the trustworthiness of the person making them. Accordingly, it may be stated as a general rule which follows naturally from the logic upon which such declarations are admitted, that competency of the declarant as a witness is not a prerequisite to admissibility."
See, also, 10 R.C.L. 980, § 162; Kenney v. State, 79 S.W. (Tex.Crim.App.) 817.
In the early case of Britton v. Washington Water Power Co.,59 Wn. 440, 110 P. 20, 33 L.R.A. (N.S.) 109, cited by textwriters on this subject, and referred to in practically all of the subsequent decisions by this court, one of respondent's witnesses, upon direct examination, stated that, when the boy was observed riding upon the steps, the conductor pulled the bell cord and started to open the door, when someone said, *Page 15 "The boy is off." This statement was stricken, on motion of the respondent. This court held the statement should have been admitted, and that, in striking the statement, the trial court committed prejudicial error. In the cited case, it does not appear that the witness knew who the person that made the statement was, nor does it appear, other than from the statement made by the bystander that "The boy is off," that he saw the act he described, but certainly it is a reasonable inference that the declarant did see the act he described. If we are to indulge in any presumptions in favor of respondents' testimony to support the verdict herein, it surely is a reasonable inference to draw from the facts that the declarant in the instant case saw appellant go through the red light.
This court has had this question before it in Heg v. Mullen,115 Wn. 252, 197 P. 51; Mathewson v. Olmstead, 126 Wn. 269,218 P. 226; Field v. North Coast Transportation Co.,164 Wn. 123, 2 P.2d 672, 76 A.L.R. 1114; and Duvall v. PioneerSand Gravel Co., 191 Wn. 417, 71 P.2d 567, but in none of these cases, so far as I have been able to determine, does it appear that the declarant saw the accident, other than as that fact may be inferred from the declarant's statement, as in the case at bar.
It seems to me the majority opinion, instead of admitting all reasonable inferences in favor of the testimony in question, indulges in speculation to sustain the contention that the sixth essential necessary to make the testimony admissible is lacking.
I am therefore of the opinion that the statement testified to by officer Green as having been made by a bystander meets all the requirements of the res gestae rule, and was properly admitted by the trial court.
I concur in the majority opinion in regard to the other questions raised. *Page 16
I think the judgment of the trial court based upon the verdict of the jury was right, and should be affirmed.
BLAKE, C.J., and MAIN, J., concur with JEFFERS, J.