Joynes v. Pennsylvania Railroad

234 Pa. 321 | Pa. | 1912

Opinion by

Mr. Justice Moschzisker,

The first amendment to the statement of claim was allowed without objection or exception on the part of the defendant, and while the second was objected to upon the ground called to our attention by the first assignment of error, it merely amplified the other amendment and was not inconsistent with the original statement; although new matter was averred the plaintiff made no real departure from the original cause of action, namely, the overcharge in freight rates, and he added nothing under which the damages could be increased. “Amendments should be liberally allowed; and the test of their propriety is whether they introduce a new cause of action:” Knapp v. Hartung, 73 Pa. 290, 294; Vervaeke v. Adams Express Co., 230 Pa. 647. The testimony objected to was relevant to the issues raised by the pleadings, and we see no error in its admission.

The freight charges were collected by the appellant company under contracts of carriage which provided that the consignee should pay the freight according to the weights ascertained by any carriers thereunder. The official tariff stipulated that when it was “practicable” for agents to weigh potatoes they should be charged for át actual weight, but when it was not “pracr tical to weigh the same,” then estimated weights according to the schedule were to govern; and that, “estimated weights will apply in cases where actual scale weights cannot be ascertained.” The significant words used are thus defined in Webster’s New International Dictionary: “Practicable, that that may be practiced or performed; capable of being put into practice, done or accomplished; feasible. Practical, syn. — see practicable.” The bill of lading and the printed tariff taken together indicate that these words were used in their ordinary sense; they did not require any particular or elaborate construction on the part of the trial judge. He left it to the jury to say under the evidence whether the company could have accomplished the taking of the actual weight of the potatoes, — whether it was feasible for them to have ascertained their actual weight. The uncontradicted evidence showed that there were hand scales at the various stations of original shipment which had a capacity of 500 pounds, and that barrels of potatoes were at times actually weighed upon such scales; that at several points between those stations and the place of delivery there were track-scales capable of weighing carloads of potatoes, where such work was actually done; and that Pittsburgh, the terminal point, had track scales in the produce yard upon which the actual weight could have been taken.

It appears that when potatoes are weighed in the cars, the actual weight per barrel is ascertained by dividing the total weight less the weight of the car by the number of barrels. This being so, it seems reasonable to assume that they could get the actual weight to almost as great a degree of certainty by weighing a number of barrels on hand-scales at the original point of shipment and accepting the average. However this may be, we are not convinced that, under the documentary evidence, the court was wrong in submitting all of the opportunities for weighing the potatoes to the jury, for, had the defendant company desired, it could have written into its schedule and contract the stipulation that unless track scales existed at the original point of shipment potatoes should be charged for according to estimated and not actual weights.

The trial judge was wrong in permitting the testimony concerning the contents of the record cards which indicated that some of the cars in question had been actually weighed at a station en route called Delmar. The cards themselves were the best evidence, and if the plaintiff desired to rely upon them to any extent he should have given notice to produce. But since there was ample other uncontradicted testimony to sustain a finding that it would have been practicable to weigh the potatoes, we feel that the-mistake can be treated as harmless error, and for that reason the plaintiff should not be forced to a new trial. Nor, under all the circumstances, are we inclined to reverse because of the incident called to our attention in the 14th assignment. While the trial judge should at least have stricken the objectionable answer from the record and warned the jury to disregard it, yet since counsel for the appellant rested upon his exception to the refusal to withdraw a juror and continue the cause, and made, no request of the court to warn the jury to disregard the answer, we think it is probable that all parties felt that no material harm had been done. The defendant introduced no testimony; therefore, it was unnecessary for the trial judge to refer to the “weight” and “preponderance” of the evidence, but no possible harm could have been done thereby.

There was ample evidence to show that it was practicable to ascertain the actual weights, and that the freight payments were not voluntary. After considering in detail each of the matters called to our attention we are not convinced of reversible error; the assignments are all overruled and the judgment is affirmed.