58 Pa. Super. 477 | Pa. Super. Ct. | 1914
On motion for a new trial Strauss, J., filed the following opinion:
The argument on this motion concerned itself with exceptions to certain cross-examination of George Haiss, one of the defendant’s witnesses.
The suit is an action for breach of an express warranty of a hoisting engine, derrick, and an appliance known as a clam-shell bucket, resulting from a bad design of the engine which manifested itself more particularly in the frequent destruction of frictions. In the engine as originally constructed these were bands of leather placed around a flange projection on
The plaintiff produced testimony, that through having two drums and a spur wheel on a shaft nearly nine feet long, there was a tendency in the shaft to sag and thereby to bring the friction into contact with the spur wheel closely at the top but imperfectly elsewhere; that the usual design of a hoisting engine of this size provided that each drum was on a short shaft by itself, one drum being placed in front of, and a little lower down than the other by which so-called “tandem” construction the ropes could be carried to the foot of the derrick without the intervention of sheaves and without interfering with one another; that very soon after the machine had been put in operation, the leather frictions were torn out and that others were successively torn out; that subsequently a material called fiber was used
It will thus be seen that the question involved not simply the suitableness of leather for use in frictions as an abstract proposition but its use in this particular machine. To partially meet the plaintiff’s evidence, the defendant put upon the stand the witness Haiss as an expert who was “the designer of the Haiss bucket called for by the specifications .... familiar with various kinds of engines .... had built them for about eight years; .... familiar with engines operating a clam-shell bucket .... and with engines that operated mast and gaff derricks, tower derricks, stiff legged derricks, .... revolving derricks; .... acquainted with the character of frictions, wood and .... leather; knew that Meade & Morris used leather altogether (though he qualified this by stating under cross-examination that they also used wood in at least one form of their engines); named other firms, manufacturers of hoisting engines who used leather, but stated that in the machines constructed by himself he used wood frictions; testified that a hammered steel shaft five one-half inches thick and eight feet and one inch between centers, in an engine operating a clam-shell bucket, would not be deflected.
Now, it seems perfectly evident that the suit was not concerned abstractly with the use of leather for frictions in engines generally but with mechanical requirements in this particular engine. Unless that was the purpose of Haiss’s testimony it would necessarily have been excluded as irrelevant. It is true that the defendant’s
As we have remarked, the issue involved was not the
Floyd v. Bovard, 6 W. & S. 75; Helser v. McGrath, 52 Pa. 531.
Smith v. Phila. Traction Co., 202 Pa. 54; Glenn v. Phila., etc., Traction Co., 206 Pa. 135.
Now, January 16, 1914, the reasons for new trial are overruled; new trial refused and judgment is directed to be entered upon the verdict.
Defendant appealed.
Errors assigned were (1, 2) rulings on evidence as above, quoting the bill of exceptions.
In Glenn v. Philadelphia and West Chester Traction Company, 206 Pa. 135, Mr. Justice Mestrezat stated the general rule as to thé cross-examination of witnesses and then said: “While this is the rule, yet the range of a cross-examination must, to a very great extent, be left to the sound discretion of the trial judge, and unless that discretion has been plainly abused, to the injury of the party complaining, it is not ground for reversal.”
In support of this proposition numerous cases are cited. In addition to these, Smith v. Traction Co., 202 Pa. 54, may be appropriately cited. Mr. Justice Brown speaking of the cross-examination there under consideration said: “Even if, in one sense, it was new matter, yet, in another point of view, it was but developing a part of the res gestae, and this the defendant had a right to inquire into by cross-examination: Markley v. Swartzlander, 8 W. & S. 172.” The principle there referred to is applicable here. The cross-examination complained of was upon what was a material part of the res gestae. This has
The assignments of error are overruled and the judgment is affirmed.