Hughes v. President of the Delaware & Hudson Canal Co. , 38 W.N.C. 393 ( 1896 )

Opinion by

Mr. Justice Mitchell,

It is difficult to see upon what ground the declaration of Jones was excluded. He had testified at the trial as to the manner in which the accident occurred, and the defense offered to contradict him by a statement in writing signed -by him while at the hospital. The witness who took down the statement was allowed to refresh his memory from it, and repeat what Jones had said, but the writing itself was excluded. • This was clear error. If it had been a letter from Jones there could have been no question about its admissibility, and the only difference was that being in another hand and only signed by him, it would have gone to the jury with the necessary explanation of the circumstances under which it was made. The error was not cured by the witness having in effect got the exact language of the statement before the jury. One of the objections made to, the paper was that Jones was at the time lying on a cot at the hospital with his head bandaged and in no condition to make a statement, and on this subject his signature alone was an important item of evidence. The defendant was entitled to have the paper itself put before the jury.

For the same reason it was also error to exclude the statement by Hughes, the plaintiff’s husband. It should have gone to the jury in connection with the circumstances under which it was made. This was excluded also on the ground that it was not made by a party to the suit and was not therefore admissible against the plaintiff. This however is no more tenable than the other. At the time his statement was made the only right of action there was at all was in Hughes. Plaintiff had no claim until he died, and then the foundation of her claim was the injury to him, for which he might have sued in Ms lifetime. If the defendant would not have been liable to Mm in the first instance it was not made liable to her by Ms death. We are not aware of any case, certainly our attention has not been called to any, in which a widow has recovered for injuries to her husband where he could not have done so himself if he had survived. And on principle it is perfectly clear that she never can do so, for the original right of action is in him and hers is but m succession or substitution for his, where he has not asserted it Mmself. If he has done so his action survives, if he has not then by virtue of the statute she brings hers in its place but for the same cause: Birch v. Pittsburg etc. R. R. Co., 165 Pa. 339.

In this connection appellee cites the remarks in Bradford City v. Downs, 126 Pa. 622, as to the declarations of an infant who was injured not bemg admissible against the father in an action for loss of services unless they were part of the res gestee. The cases might easily be distinguished on the ground that the father’s action is in his own right and not derived through the infant. A much closer analogy may be found in the declarations of a predecessor in title while in possession, which have always been held admissible: Weidman v. Kohr, 4 S. & R. 174. But the point in Bradford v. Downs was comparatively unimportant, and in Ogden v. R. R., 23 W. N. 191, the court distinctly declined to include it in the affirmance of the judgment. We entertain so strong a doubt of its soundness that we should be unwilling to extend the rule to the present case even if the analogy were closer than it is.

It is not worth while to discuss the minor assignments of error, or the evidence relative to the place where the deceased stopped to look and listen, because on the whole case Ms contributory negligence was so unquestionable that the court should have pronounced upon it as a matter of law. The plaintiff’s ease as to the manner in which the accident occurred, rests on the testimony of Jones who was in the wagon with deceased at the time. Jones says that when they reached the crossing they waited for a coal train on the north bound track to pass, and as soon as it got about twenty feet past they drove slowly on the track, looking and listening, and were almost immediately struck by a train on the other track, the engine, he says, “ was on our buggy without almost our knowing anything about it.” It is plain that the accident arose from that fruitful source of danger, fixing attention so exclusively on one track as to divert it from necessary care in regard to the other. The questions of the proper place to stop, look and listen, and the action of the party in regard to it are usually for the jury, and have been so declared in a long line of cases cited by appellee, of which perhaps the closest to the present is Whitman v. R. R., 156 Pa. 175. But there are exceptions where the inference from admitted facts is clear, and it becomes the duty of the court to declare the law as a result. The element which distinguishes this - case from those relied upon by appellee is the temporary nature of the ohstruction to the view. The deceased drove on the south hound track when the view of it was cut off by the rear end of the passing train on the other track, and was struck so immediately that it is beyond all possible doubt that the coming train which struck him could have been seen and the accident escaped had he waited but a single instant until the receding train on the north bound track had cleared the view. Under such circumstances it was held in Kraus v. R. R. Co., 139 Pa. 272, that a nonsuit was properly entered. This case belongs to the same class, and the question having been reserved, judgment should have been entered non obstante veredicto for the defendant.

Judgment reversed, and judgment directed to be entered for the defendant on the point reserved.