Baker v. Hagey

177 Pa. 128 | Pa. | 1896

Opinion by

Mr. Justice Gbeen,

We do not see how we can avoid reversing this judgment on the fifth assignment of error. The learned court below charged the jury thus: “ But I instruct you as a matter of law that no matter what precautions they took, if, notwithstanding these precautions, these missiles did fly from that place and did cause bilis injury, then in the law they would be liable in this action. So far as that branch of the case therefore is concerned I apprehend you will have no difficulty in arriving at a conclusion.” The plain meaning of this language is that the defendants were absolutely liable if the missiles did fly from the place of blasting, and did cause the injury. As there was no dispute about either of these facts the instruction was a practical direction to find for the plaintiff, without any reference to the question of negligence. Of course this is not the law, and the learned court had previously instructed the jury that the defendants were not liable unless they were guilty of negligence. But in the above quoted extract from the charge the learned judge told the jury that no matter what precautions were used to prevent the discharge of the missiles, the defendants were liable if the missiles escaped and caused the injury. In other words the mere fact of the accident established the right of recovery without proof of negligence. As this is in direct hostility with the earlier part of the charge there would necessarily be much confusion in the minds of the jurymen as to what the law really was. Thus the learned court at the opening of the charge said to the jury: “ It is undisputed that he (the plaintiff) sustained an injury. This in itself, would not sustain his action, unless he shows to your satisfaction that it was caused by negligence, and therefore, in considering this ease, our first duty is to inquire as to whether the evidence convinces you that there was negligence in the case.” According to the part of the charge covered by the fifth assignment no inquiry as to negligence was necessary, because no matter what precautions were taken by the defendants, they were absolutely liable if the plaintiff sustained his injury by missiles thrown from the quarry. As these conflicting instructions would materially tend to mislead the jury, and as the part of the charge excepted to is clearly erroneous, the fifth assignment must be sustained.

We do not think the first assignment can be sustained. The evidence offered and admitted under exception tended strongly to show a negligent condition of the structure within which the blasts were discharged, as well as specific resulting acts of discharge, These latter were manifested by the emission and scattering of both large and small pieces of the steel which had been shattered by the blasts, and in this regard the testimony is quite similar to that which is always admitted in cases of fires caused by the emission of sparks from locomotive engines. If the engine is known, all the authorities concur that previous emissions of sparks by that engine may be shown. This whole subject is so thoroughly discussed in an elaborate opinion by our late Brother Clauk in the case of Henderson v. Railroad, 144 Pa. 461, that a mere reference to it is sufficient. Here the discharges took place from a known building or structure, and certainly evidence of its condition before and at the time of the discharge in question was competent, and as the testimony showed frequent discharges through, and from it, the proof tended to show its condition.

The second and sixth assignments cannot be sustained, as the testimony offered and received was clearly competent and gen-mane to the plaintiff’s cause of action. Of course the previous loss of the other arm could not be considered as a cause of damage in this case, and there was no such instruction in the charge. The testimony as to the plaintiff’s actual condition could not be excluded.

The third assignment is without merit. The conversations testified to by the witness Petry were between third persons so far as the plaintiff was concerned, and the proposed inquiry would develop that which was mere hearsay. But the whole of the evidence as to this conversation was subsequently admitted and no harm was done to the defendants by its exclusion at this stage.

It is not correct to say that the letter of April 12, 1894, from George Hagey to the steel company was admitted without any proof of its being written or authorized by George Hagey. It was written as a direct reply to a letter received by him from the Norristown Steel Company, and it was written on a letter head sheet of George Hagey’s, and both he and his son Samuel testified substantially that it was written or signed by George Hagey’s son Percy. It was one of a series of letters all on the same subject and formed part of a quantity of correspondence which was material to the case. George Hagey being examined as a witness in regard to it did not deny his son’s authority to sign such a letter in his name. We think the testimony was sufficient to justify its admission in evidence. The fourth assignment is therefore dismissed.

Seventh and eighth assignments. The answer to the eighth point of the defendant was certainly correct. The actual presence of the defendant at the moment of the accident was not necessary to make him liable, if the other facts and circumstances were sufficient to show liability.

The answer to the seventh point of defendant seems to us to be entirely correct. The plaintiff’s statement of claim does not charge the defendants as partners, nor as joint tort feasors in the sense that they were subject to a joint obligation, or had a joint interest in the business. They were charged rather as two independent persons both of whom were liable for a permanent injury inflicted by them both. Of course if both were hable under the evidence, the verdict should be against both, if one only was hable in accordance with the testimony, and the other was not, the verdict should be against the one who was, and in favor of the one who was not. If neither was hable the verdict should be for the defendants. This is precisely what the court charged and we fail to discover any error in it. These assignments are dismissed.

Ninth, tenth and eleventh assignments. There is no merit in these assignments and they are not sustained. The court below was not asked to charge the jury that if they believed the testimony of the witnesses named in the ninth assignment, George Hagey had no interest in the business, and therefore there was no error in not so charging. The court could not possibly instruct the jury that there was no evidence that there was any joint ownership, interest or management in the business of steel blasting at the place in question, because there was much testimony showing the participation of both in the conduct of the business. This evidence was necessarily for the jury and could not be withdrawn from them. It must be confessed that the explanatory testimony of the fact that George Hagey’s name appears in the papers as the party contracting and otherwise participating, and the positive testimony of both defendants that George Hagey had no interest in the business, seem to be sufficient to establish that fact, yet it is a question of fact, and the credibility of the witnesses, and the effect of the various facts and circumstances in evidence as they bear upon that subject, was for tbe jury to determine, and could not be taken from them. We think the court below was not in error in submitting tbe case to tbe jury although it is quite possible that we would have reached a different conclusion if we were disposing of tbe facts. Judgment reversed and new venire awarded.