Corbin v. Haws Refractories Co. , 277 Pa. 126 ( 1923 )

Opinion by

Mr. Justice Sadler,

Cloyd Corbin was a member of an organization composed of foremen and superintendents of various concerns engaged in the manufacture of silica brick. It was the custom of those associated to visit, from time to time, the plants of others interested in like work for the purpose of observing the methods of operation, the expenses being paid by their employers. The Haws Refractories Company maintained a place of business inMifflin County, and its manager arranged for an inspection, on May 10, 1919, inviting, amongst' others, the deceased. A lunch was served at Lewistown, for which defendant paid, and the guests were then conveyed by automobile to a point on the north side of the Juniata River. Here was a landing place, from which a flatboat was moved, by means of an overhead cable and the energy of the water, to the opposite bank. At the time, the water was unusually high and the current swift. Under the supervision of an employee, twelve of the party were transferred to the south side in safety, though danger threatened. The second attempted trip was personally conducted by the superintendent of the company, and, on his order, the number of passengers was reduced by one. After crossing one-third of the distance, t'he boat suddenly submerged, resulting in the death of seven, including plaintiff’s husband. The cause of the sinking was disputed; it was asserted on the one hand to be due to overloading of the raft and the attempt to move it, in view of the existing condition of the river, while defendant insisted the accident was the consequence of a shifting of the passengers to the rear. An action to recover damages was brought by Mrs. Corbin, and a verdict rendered in her favor. The motion made by defendant for judgment n. o. v. was overruled; hence this appeal.

A number of assignments of error have been filed, but the questions really involved are few. It is first contended that no such relation was shown between the deceased and defendant as to impose on the latter responsibility for the loss occasioned. The claim is made that the passengers on the boat were there at the suggestion of employees of the company, and were not to be considered as invitees of it. Evidence was offered to show the membership of Corbin in the club above referred to, and that the general superintendent of defendant requested the visit to its plant. The Refractories Company furnished the entertainment, as well as the motors which carried the guests to the boat landing, and was owner of the ferry, which was loaded and moved under the direction of its manager. There is some testimony that the general officers of the corporation had no knowledge of the proposed meeting, but it was for the jurors to say, under the evidence submitted, whether the employees were acting within the scope of their authority in extending the invitation, and in following the course which they pursued. They were carefully instructed as to the necessity of an affirmative finding before a recovery would be justified, and determined that Corbin was a guest of the corporation. Where one has asked, or by implication induced, another to come upon its premises, it owes to him a duty to see that such are in a reasonably safe condition, and if injury occurs by reason of failure to exercise the proper care, the owner is liable for damage sustained: 20 R. C. L. 55; Robb v. Niles-Bement-Pond Co., 269 Pa. 298. Here, the boat was the property of defendant, and used, as a part of its plant, to convey employees, and others having business with the concern, from the north to the south side of the river. It was under the direct control of the managers, and, if not in proper condition, or due care was not exercised in the handling of it, defendant is responsible for the loss occurring.

Appellant, however, insists no recovery can be had in this case, though the jury has found the deceased to be the invitee of the company, for the reason that no adequate proof of negligence was offered on behalf of plaintiff, and binding instructions should, therefore, have been given for it. As already observed, the ferry, operated as it was on a cable, and securing its motive power from the current of the stream, was being used at a time when the river was at flood-stage. The first crossing made was attended with risk, and it is to be noted that, upon the second attempted trip, the general superintendent, who had it in charge, directed one of those proposing to accompany the others to withdraw, because of the danger which he apparently realized. If the passengers permitted on the boat were in excess of the capacity, in view of its construction and the river conditions prevailing, then, for the lack of due care in the operation, an action could be maintained. Evidence was offered to show that on other occasions a larger number of people had been carried by the same ferry, but' it also appeared that at the times referred to the crossing place was at a different point on the river, and the height and current of the stream were comparatively normal.

The plaintiff proposed to prove by a witness standing on the bank that the raft was dangerously overcrowded, but this testimony was not admitted by the court below. One person, Ballentine, was permitted to give an opinion. He was a man about fifty years of age, and had spent most of his life along the Juniata River, using all sorts of boats, and knew the stream in all conditions, and, further, made use of a ferry attached to a cable and propelled by the water, such as that operated by defendant. On the day after the occurrence which gave rise to this suit, he recovered the identical boat, and used it for a week thereafter in searching for the bodies of those who were drowned. He described its construction and size,— which was in accord with the evidence given by Fox, —and testified as to its carrying capacity, stating his conclusion that, in view of the river conditions, not more than six persons could have been transferred with safety.

The main ground of complaint now raised is based on the admission of this opinion. Attention is called to the lack of experience of the witness, to his want of knowledge of the height' of the river on the day in question, and his inaccuracy in describing the size of the craft which was submerged. It is true he was not at the place of the accident at the time it occurred, but he did arrive on the following morning, recovered the boat and used it for many days thereafter. He gave, to the best of his recollection, a statement of its dimensions, based on personal observation, and was corroborated by the witness Fox. This estimate was properly admitted (Downey Bros. v. P. R. R. Co., 219 Pa. 32), and, though contradicted by others who claimed to have made more accurate measurements, the dispute was one for the jury. The rights of the defendant were amply protected when the court' affirmed its fourth point, directing that Bailentine’s evidence be disregarded, if found to be based on a misapprehension of the facts.

It is, however, urged that since the attending circumstances could be adequately described, the expression of any opinion as to the carrying capacity of the boat was unjustified, but, in our view, this contention is not tenable: Delaware and C. S. Towboat Co. v. Starrs, 69 Pa. 36, 41; Reed v. Dick, 8 Watts 479; Union Ins. Co. v. Smith, 124 U. S. 405; Ogden v. Parsons, 23 How. 167; Eastern Transportation Line v. Hope, 95 U. S. 297. The known facts could be narrated by the witnesses, but the conclusion to be drawn from them was properly the subject of expert testimony. Were we in doubt as to the competency of Ballentine to state his judgment, it would be resolved in favor of the ruling of the court below, as the receipt of this class of evidence is largely a matter within its discretion: Stevenson v. Coal Company, 203 Pa. 316; 22 C. J. 514.

The defendant produced an engineer who fixed the buoyancy of a craft of dimensions such as testified to by its witnesses, but who expressed no opinion as to the number of people who could be safely transported on it. This threw little light on the question as to whether the boat was dangerously overloaded, and was based on measurements which were in contradiction of the figures given by witnesses for the plaintiff.

After a careful review of the entire record, we are convinced the case was one for the jury. Both the questions of negligence and contributory negligence were submitted in a fair and impartial charge. There was sufficient evidence to justify the finding made, and the assignments of error are overruled.

The judgment is affirmed.