122 Pa. 449 | Pa. | 1888
Opinion,
This was an action for negligence alleged to have been the cause of the destruction of the plaintiff’s boiler-house. The allegations were twofold: first, that defendant had turned on the flow of additional wells of gas into the main pipe so as to increase the pressure to an extraordinary degree, thereby causing an explosion and the conflagration of the boiler-house; and second, that a stoppage in the pipe by freezing or other obstruction had set back the gas so that by its confinement and accumulation when let loose by thawing, it increased the pressure in the same degree, and notice should have been given. The defendant denied the first allegation, and claimed that as to the second, it was not necessary to give the notice; that on a high-pressure line with proper safety valves on the part of the plaintiff, all such irregularities are controlled with perfect safety; also, that by sleeping at his post the plaintiff was guilty of contributory negligence.
The assignments of error are three, and we consider them in their order.
The court below permitted the plaintiff to testify that at ten or eleven o’clock on the morning of the day on which the accident occurred, the explosion having taken place at four o’clock in the morning, he met the agent of the defendant company at Fern City, away from the scene of the accident, and said to him, “You must have turned on new wells,” and the agent said, “ They only opened the Nufer well — turned the Nufer well on.” It was objected that this was the declaration of an agent, not part of the res gestee.
In order to warrant the proof of admissions by an agent, one or more of the following facts must exist: It must appear that the agent was specially authorized to make them ; or his powers must have been such as to constitute him the general representative of the principal, having the management of the
It will be readily seen that the declarations are not brought within the rule. It is imperative in cases of alleged tortious conduct, such as negligence, unless the act is specially authorized, that the admissions of the agent must be part of the res gestae, otherwise they are hearsay. The agent himself can be called to prove the same state of facts attempted to be proved by his admissions. It will be seen that this statement of the agent was not specially authorized; he was not instructed to go and do the negligent act, nor did it appear affirmatively that he had charge of the whole business. It is true he had charge of the Clarion county line, but all the wells were in Venango county; the principal office of the company was there; the agent had an office in Clarion. While he undoubtedly had control to regulate the flow established for the Clarion line, shut on and off the different wells for that purpose, it does not appear that for a new well he had any authority to connect and open it until he received instructions from headquarters. The presumption would be the other way, he being a subordinate superintendent. His statement is no part of the res gestan It was made five or six hours after the occurrence complained of; he had not been there, knew nothing of it. If we give the whole of the conversation, it will be seen that it is really an attempt to impinge upon a declaration of the agent a theory of the plaintiff himself, expressed in a state of irritability and excitement, which is not borne out by a single item of testimony. The conversation is as follows :
Q. Mr. Boundy, what position does Mr. Loomis hold in this gas company? A. I always considered him general agent and superintendent of the whole line.
Q. Where is the general office hr this county? A. Oil City.
Q. No; In this county? A. Well, it must be Edenburg.
Q. And who has charge of that general office ? A. Loomis.
Q. State what conversation you had with Mr. Loomis on the morning of the accident ? A. I seen him about ten or eleven o’clock.
Q. Where ? A. In Fern City. And I says to him, “ You done a pretty fine thing for me, you burned me out.” He said, “We had no men on the line,” and I said, “You had. You had men out all night, and pretty near all day, doing something,” and I said, “ You must have turned on new wells.” And he said they only opened the Nufer well — turned the Nufer well on.
There is another reason why this declaration was not evidence. It was not in itself competent to prove what was claimed for it. It was offered for the purpose of showing that the accident was caused by additional wells being turned into the pipe; in other words, that the regular and continued flow of the pipe from which the plaintiff drew his gas was made up of one or more other wells, exclusive of the Nufer well. This, therefore, was a fact to be proved by the plaintiff in order to make the admission bear the construction attempted to be put upon it; — a fact, if true, easily proved. He did not show this. He did not include it in his offer. There is not a particle of evidence that the Nufer well had not always been one of those furnishing gas, previous and up to the time of the accident. On the contrary, the uncontradicted testimony is that it was one of those wells. It is true that the plaintiff said he had worked previously on connections which were intended at some time to furnish gas for the line, but that it had been connected was mere guess work. There was no evidence of that kind; the testimony was to the contrary. It is clear that this admission as proved may have had some effect upon the jury on that part of the plaintiff’s allegations.
The second specification of error contains the more serious mistake. It was assumed by the learned judge, in his charge to the jury, that the question of contributory negligence was an element in the case, whether that question was the suffi
In this language the court below fell into the same error committed in Monongahela City v. Fischer, 111 Pa. 9. The rule is that any degree of negligence on the part of the plaintiff. contributing to the injury, destroys his right to recover. The point not only required that the negligence should contribute materially, but essentially to the injury. The reason for the rule is fully stated in the case cited. It is safe and easy of application by the jury. It is the kind of action, not the quantity, on the part of the plaintiff, which prevents. the law from measuring between plaintiff and defendant their respective degrees of negligence when the former comes into a court of justice.
In regard to the third specification of error, it may bo to-marked that as it is worded we discover no error. “ The usual and ordinary risks ” of a high-pressure line, would differ from those of a low-pressure line, and extraordinary risk$ in such a case would depend on testimony which carried the risks beyond this rule; and if they became such through the negligence of the defendant, it would not be error to affirm the point. The propriety of the language would depend on the facts of the particular case.
Judgment reversed and a venire de novo awarded.
