Stremme v. Dyer
223 Pa. 7
Pa.
1909
Check Treatment

Opinion by

Mr. Justice Stewart,

The plaintiff, a railroad engineer, was put in charge by the defendant of an engine employed in hauling cars loaded with earth from one point where it was excavated, upon and over a temporary trestle, to a dumping ground at either side of the trestle. On this particular occasion, as the train of cars his engine was hauling reached the place where the earth was to be discharged, the trestle gave way, and engine and cars were precipitated to the ground below. In the accident plaintiff received the injuries for which he seeks to recover. The negligence charged was faulty and improper construction of the trestle, which rendered it inadequate for the purpose intended, and therefore unsafe and dangerous for those employed thereon. The evidence on part of the plaintiff was directed wholly to the construction of the trestle, and developed no other cause' to which the collapse could be referred. That this evidence would be sufficient to support an inference that the collapse was in consequence of defective construction of the trestle, must be admitted. The effort on part of defendant was, in the first place, to rebut any such inference by adducing evidence to show that the trestle was constructed in accordance with the design most generally adopted and approved, of sound material, of such dimensions as are ordinarily used in such structures, and that it was fully adequate for the purpose for which it was intended; and, second, to show that what caused the fall of the trestle *15was an excessive lateral pressure resulting from the negligence of a fellow workman in discharging the contents of the cars continuously upon the one side next the higher ground, leaving the other side without any embankment to resist. That this evidence would support the inference sought to be drawn from it must also be admitted. It thus appears that there were two distinct lines of defense: one that the trestle was not defective, but safe; the other, that what caused the accident was excessive lateral pressure occasioned by negligence for which defendant was not responsible. The defense was pressed on both lines with equal earnestness. In submitting the case to the jury the learned trial judge first adverted in his charge to the claim made by defendant, that the proximate cause. of the accident was the dumping the earth exclusively upon the one side of the trestle. Plaintiff had contended that even though this was the cause of the accident, the negligence was chargeable to defendant’s superintendent; while the defendant contended' that it was chargeable to the dumping' boss who stood in the fellow servant relation. In referring to this aspect of the case, after having explained the law as to contributory negligence, the learned trial judge used this language, “They (counsel for defendant) do not claim that (contributory negligence) by way of defense, but they claim that he was injured not by defendant’s negligence, but by the negligence of a fellow workman, a fellow servant as they call it, and that, gentlemen of the jury, I may say is the only defense set up in this case by the defendant.” The language here used is assigned for error in the third specification. Appellant contends that the jury could only understand from it, that they were relieved from considering the evidence of defendant which bore upon the sufficiency of the trestle; and that but one defense was insisted upon, that being that the proximate cause of the accident was chargeable to the negligence of a fellow servant. It is not too much to say that the objection is hypercritical. The ordinary mind would not be likely to misunderstand the meaning of the trial judge in this connection. ’ He had given the jury clearly to understand that it was for them to determine what the proximate cause of the accident was, and it was in the *16course of his instructions as to the law they should apply in case they found that the accident happened according to the theory of defendant, that the remark complained of was made. In the event of their so finding, it would be literally true that the only defense set up at all applicable in that view of the case, would be that the negligence, the cause of the accident, was that of a fellow servant. But even though the language was susceptible of a different application by the jury, what was meant was made so abundantly clear by succeeding portions of the charge, in which the whole matter of the sufficiency of the construction of the trestle was considered, that if any misunderstanding had existed as to the true import of the expression complained of, it must have been corrected. The charge upon this specific question covers no less than four pages of the paper-book, and is a full and careful review of the evidence on both sides. It is impossible to believe that any prejudice could have resulted to the defendant from the language complained of.

2. A witness for the plaintiff, a carpenter of experience, who had helped to cut and saw the timber used in the construction of the trestle, testified that in his judgment the structure was unsafe. He described the kind of timber used, the way it was prepared, and the manner in which it was fastened. One principal defect, in his judgment, was that the batter posts did not fit accurately in the cap and sill. Although the witness had not inspected those in place at the point where the structure broke, yet he was allowed under objection to speak of this defect which he had observed in those parts he had examined. Evidently the witness' opinion was based quite as much upon the knowledge he had of the character of the timber used and the way it was prepared, as upon what he saw of them when in place. This is clearly indicated in his testimony as to the work he had himself done in preparing the timber. He says that the batter ends were not cut off by any square, at any particular angle, but by guess, with the result that some of them were uneven and could only be made to fit by spiking them down. This evidence was properly admitted.

3. A witness for defendant of large experience having tes*17tified to the strength of' a trestle built according to the design used here, was asked whether he had known in his own experience trestles to break in consequence of lateral pressure from accumulated deposits of earth upon one side of the structure. The question was disallowed on the ground that it did not appear that the conditions were the same as here. Nor was it proposed to prove that they were. To introduce evidence of this kind, and thus put upon the other side the burden of showing that the conditions were not the same, would be to disregard the plainest rules of evidence.

4. Accepting defendant’s theory as to the cause of the accident, a most important inquiry would be — was it the negligence of defendant’s superintendent, or that of the dumping boss, that occasioned it? When discussing this feature of the case in the general charge, the trial judge referred to the testimony of the former and stated that he had admitted that he had been there (on the trestle) that morning, and saw the trains being dumped. The correctness of this being challenged, the judge referred at once to his notes of testimony, and said that it there appeared as he had stated it; but he immediately added, addressing the jury, “it is your recollection that controls when the court or the counsel do not recollect the testimony the same way. It is upon the jury to say what a particular witness said, and their recollection goes, as the court and counsel are by you disregarded.” Assuming that the testimony of the witness had been inaccurately stated by the court— and an examination of the record inclines us to think that such was the case — yet the instructions to the jury to determine from their own recollection what the witness said was so explicit, that the jury could not have failed to understand their own responsibility in the matter. They had before them the opposing versions of the testimony as presented by the court and counsel, and were instructed to resolve the question by their own recollection, in disregard of what was asserted by either. If there was a misstatement of fact, the mistake was corrected.

5. The jury was instructed to consider in connection with the sufficiency of the trestle the ground on which it was built, *18and the character of the foundation on which it rested. In view of the testimony of the witness McKinley that there was very little cribbing, and that the mud sills rested immediately upon the ground, it was entirely proper to direct the attention of the jury to this feature. What weight was to be given the circumstance alluded to was for the jury, and the court so left it. We have considered all the assignments of error, and upon a full review of the case we find nothing that calls for a reversal.

The judgment is .affirmed.