Pennsylvania Railroad v. Page , 9 Sadler 445 ( 1888 )

Opinion by

Mr. Justice Green:

We are of the opinion that there was no evidence of negligence in this case on the part of the defendant, but we cannot reverse for that reason because the court was not asked to give a binding instruction to the jury on the whole testimony; and it was not error to omit to do what they were not asked to do.

Under the sixth assignment, however, evidence was admitted which, in our opinion, was entirely incompetent, and on that ground we reverse the judgment. We refer to that part of the testimony of W. B. Levan which was offered and admitted under exception as an explanation of his previous answer. After it was all in, the defendant’s counsel moved to strike out the objectionable matter, but the court refused to do so, to which do-fondant excepted. The substance of the testimony thus admitted was that the defendant was in the habit of refusing to adopt certain appliances to modify the discharge of smoke from locomotives, which could be had by paying for them; that because these appliances were patented the defendant refused tc pay a bonus for their use, but when the patents expired, it would adopt them into general use.

We are quite at a loss to understand how this evidence could explain anything in the previous answer of the witness or how it could throw any light upon the question whether the spark arrester in use upon the engine which caused the fire in this ease was up to the standard of such spark arresters as the defendant was bound to use. The only effect of the testimony that is apparent was to create, or tend to create, a prejudice against the defendant, and that purpose was clearly illegitimate.

The other assignments are not sustained.

Judgment reversed and new venire awarded.