American Steamship Co. v. Landreth , 102 Pa. 131 ( 1883 )

Mr. Justice Sterrett

delivered the opinion of the court, October 1st 1883.

Plaintiff below was a cabin passenger on board the company’s steamship Pennsylvania on her voyage from Liverpool to Philadelphia, during which the vessel for several days in succession encountered a heavy sea. After the storm ■had sómewhat abated, plaintiff attempted to cross the saloon for the. purpose of entering the state-room of a fellow-passengér. While she was in the act of doing so, the ship gave a sudden lurch by which she was thrown backwards on the floor, and in the effort to save herself, the bones of her wrist were fractured. She fell alongside a smooth paneling, twelve feet long, covering the space between the first two alcoves of the cabin, and near the staircase leading to • tlje deck. At that point there was no guard or railing by which passengers might support themselves in case of sudden motion of the vessel. The omission of the company to provide such guard or rail to which plaintiff might have clung, and thus avoided injury, constitutes the negligence on which the action is mainly grounded. In addition thereto, the declaration charges negligence and unskillfulness of the ship’s surgeon in his treatment of the fracture, but inasmuch as binding instructions were given in favor of the defendant, we are relieved from the further consideration of that branch of the case.

As to the main ground of complaint, the declaration containing the necessary preliminary averments charges that it was the duty of the steamship company “ to use due and proper care and skill in and about carrying and conveying plaintiff, and to furnish a good, staunch and sufficient ship for that purpose, with proper and sufficient appliances and hand-rails to insure the safety and security of plaintiff; yet, defendants not regarding their duty in that behalf, did not furnish a good, staunch and sufficient ship, with proper and sufficient appliances, handrails,” etc. The general goodness and seaworthiness of the vessel were not questioned. The only defect complained of is the want of the guard or hand-rail along the paneling above mentioned. The plaintiff’s evidence was: 1st. Her own testimony, in which she fully explains how the injury occurred, and says she could have prevented herself from falling if there had been a hand-rail at the point mentioned, and other testimony tending to explain the circumstances of the injury. 2nd. Declarations of Captain Harris, master in command of the ship, that the place where plaintiff fell was dangerous; that there should have been a hand-rail there ; that it would have prevented the aceident, and that he intended to have one put up. 3rd. Testimony tending to prove that passenger vessels are generally, provided with hand-rails along the sides of their cabins.

The defendant mainly relied on the failure of plaintiff to make out a case of negligence; also, on the negligence of plaintiff herself contributing to the injury, and on testimony tending to show that every reasonable precaution liad been taken to ensure the safety of passengers.

Aside from the declarations of Captain Harris the admission of which is specially complained of, the testimony presented questions of fact for the jury; and these questions appear to have been submitted under instructions that are free from substantial error. "When considered in connection with other portions of the charge there is no error in the clausé complained of in the third specification. The case was clearly for the jury on the question of negligence and contributory negligence. The third, fourth and fifth assignments of error are not sustained.

On the main question, the declarations of Capt. Harris would doubtless have great weight with the jury, and for aught we know, may have had a controlling influence in determining their verdict. The contention of plaintiff in error is that the declarations in question were no part of the res gestae; that they were not within the scope of the captain’s employment, so as to bind his principals, and moreover they were mere expressions of opinion. If this be so, they were improperly admitted, and for that reason alone the judgment must bo reversed. There is no force in the position that in. point of time the declarations were too remote from the accident; but a fatal objection is that they do not relate to anything that occurred at the time of the accident and in connection therewith, but to an alleged defect in the original construction of the vesel. Declarations of an agent are doubtless admissible in some cases against his principal, but only so far as he had authority, express or implied, to make them; and such authority is not necessarily to be inferred from power given to do certain acts. ■ In the case before us, the captain was employed to navigate the vessel, not to make admissions as to the negligence, of his employers or their servants in the construction of ■ the ship. Authority to make such admissions was neither necessary to his employment, nor in any manner incidental thereto. The declarations given in evidence had no connection with the navigation of the vessel, and hence they were not made by one acting within the scope of his employment. In Packet Co. v. Clouch, 20 Wall. 528, it is said, “ A captain of a passenger steamer is empowered to receive passengers on board, but it is not necessary to this power .that he be authorized to admit that either his principal or any servant of his principal has been guilty of negligence in receiving them. There is no necessary connection between the admission and the act.” Much less is there any necessary connection between the accident which befell plaintiff below and ■the admission of Captain Harris that the vessel he was employed to navigate had been so negligently and carelessly constructed •as to be dangerous for passengers. He was not the representative of the owners of the vessel for the purpose of fastening on them a charge of negligence, of which they were guilty, if guilty at all, long before. The declarations complained of are neither part of the res gestse in connection with the injury sustained by the plaintiff below, nor were they made within the scope of Captain Harris’ employment. Moreover, they were mere expressions of opinion and therefore not within the rule.

Judgment reversed and a venire facias de novo awarded.