125 Pa. 259 | Pa. | 1889
Opinion,
In no possible point of view were the declarations which were admitted in evidence under the 13th, 14th, and 15th assignments of error competent. The testimony of Vaughan' as to what Hopkins had told him was not admissible as a contradiction of anything as to which Hopkins had been asked; and as declarations by agents while in the course of their duty, all the declarations of the three persons, Warg, Hopkins, and Smith, were incompetent, because they were not part of the res gestee. The rule of law upon this subject is so perfectly familiar that it is not necessary to refer to the authorities. These three assignments are, therefore, sustained.
The assignments from number 11 to 15, both inclusive, relate to the admissibility of evidence in regard to the condition of the locomotive. It was all received on the trial, but in the charge the learned court below withdrew it all from the consideration of the jury as being entirely insufficient to convict the defendant of any negligence in relation to the engine. After the testimony was closed and before counsel addressed the jury, a motion was made to strike out this testimony, but was refused' by the court, under exception.
It has long been held, and in many cases, that where evidence has been improperly received which tends to prejudice the minds of the jurors, and the court in the charge directs the jury to disregard the evidence and withdraws it from their consideration, this instruction comes too late and does not cure the error of admitting it: Del. & Hud. Canal Co. v. Barnes,
These several assignments are therefore sustained, and also that part of the 16th assignment which relates to the testimony of Caskey and Hayes.
The remaining portion of the sixteenth assignment relates to the refusal of the court below to strike out the testimony of the plaintiff’s witnesses Stevenson and Rodman, who gave evidence in regard to the curve in the track and the condition of the road-bed. The court was of opinion that this portion of the testimony might be considered by the jury. In an exceedingly fair and clear manner the judge explained to the jury just liow far they might consider the testimony on this subject and in what event they might find for the plaintiff. He said the railroad company is not responsible to its employees for the manner in which the engineer lays out the curves upon the road; the jury could not be permitted to review the skill and judgment of the engineer in such a mattei', but he said they might review the manner in which the rails were laid. After much careful reference to the testimony of the two witnesses, and they were all who testified on this subject, in regard to an alleged irregularity in the line of the curve as the rails were laid, he said, “If you find that the irregularity existed, and that it existed prior to this accident, then the question is whether such an irregularity was the occasion of danger such as to make this company guilty of negligence.” The evidence in question was limited to that of these two wit
The witness Stevenson said that there was more or less variation in the curves on all railroads, but that there was more in this instance than he had seen on other roads. The witness Rodman gave no measurements, and in fact said nothing about any variations. He was examined as to other matters. There was no other testimony for the plaintiff in regard to this matter. These witnesses were not on the track on the day of the accident nor until the time of their measurements on April 22d. Of course the testimony would have but little value as to the condition of the road on the 19th of March. They went back in October, 1887, and said they then found the road in good condition, the curves more regular and with little variation. The defendant’s road-master testified that nothing had been done to the track from the time of the accident to the time of the trial, and no witness testified to having done any work on the rails or seen any done in that time. The learned court submitted the evidence as to the variations in the curve to the jury with instructions that they might find negligence on the part of the defendant sufficient to enable the plaintiff to recover.
If any testimony had been given to the effect that the condition of the rails as described by Stevenson and Rodman was the cause or might be the cairse of the engine mounting on the rail, or if they had described how such a result might, or could, or probably would have resulted from such a condition of the rails, there would be something from which a jury might be able to draw an inference of negligence in that respect, but there is not a particle of such evidence in the case. Neither of these witnesses nor any other, testified that the slight variation
There was some little testimony in regard to tbe ballasting of tbe track, but it proved nothing whatever as to the cause of the accident. It did not show that there was or could be from that source any depression of tlie track at tlie place of tlie accident. Tlie engineer, OTIara, wlio was running tlie engine at tbe time, said that after they had gone about a hundred or a hundred and fifty feet on the curve the engine “ seemed to sag over just as though she struck a soft spot in the track;” that “she came back again, tliat is, sbe recovered from tlie sag, and it did not seem to be over tlie length of a rail before slic struck another such place and she never recovered entirely from that. She seemed to go over and come part way back and then tipped right over.'” Ho adds, “ I don’t know what caused her to roll in that way, whether it was a soft spot in the track or whether she left the track. .... Whether she was on tlie track or off
Judgment reversed.