96 Pa. 65 | Pa. | 1880
delivered the opinion of the Court, November 22d 1880.
On the trial of this cause, the plaintiff made the following offer of proof by the witness, Alexander Eulton, viz.: “ That he owned land on the line of the P. & C. Railroad Co. in 1856, and notified the engineer who was then employed by the P. & C. Railroad Co., and was engaged in the erection and construction of said barrels or culverts at Shaner’s Station for the said company, that they were insufficient to receive and discharge the volume of water. That the engineer replied he knew they were not sufficiently large to receive the water.” A similar offer, with a somewhat less precise designation of the character of the work in which the engineer was engaged, had been previously made and rejected, under objections by the defendant, but when repeated in the form last offered, the objections were overruled and the evidence was admitted. The witness then proceeded to testify that in 1856 he told the engineer who had charge of the construction of the culverts at Shaner’s Station that they were too small and that the engineer had said in reply that “ they were not sufficient in that shape from what he had seen of the floods there that summer.” We think this testimony was erroneously admitted. The witness did not name the person with whom he held this conversation, so that it could with certainty be determined whether he was correct in his supposition that he was the engineer in charge of the construction, or so that an opportunity for a possible contradiction would be afforded. Moreover, the person, whoever he was, was not an agent of the defendant, but of another corporation which twenty-four years before had built the railway and culvert. Again, the testimony itself was but the opinion of the engineer as to the sufficiency of the culvert, communicated to another, and that opinion he could give directly to the jury. Its communication to another who was an entire stranger to the defendant, nearly a quarter of a century before the trial, certainly could not suffice to bind the defendant in any manner whatever. The second assignment of error is therefore sustained. We are also of opinion that the court erred in their answers to the plaintiff’s second and third points. In affirming the first point, the court ruled that: “ If there was negligence on the part of the defendant concurring with the act of God, at the time plaintiff’s loss was sustained, then the defendant is liable, and the jury are not bound to inquire whether the loss would have happened if the defendant had not been guilty of negligence.” As we understand
Judgment reversed, and venire facias de novo awarded.