Giberson v. Patterson Mills Co. , 187 Pa. 513 ( 1898 )

Opinion by

Mr. Justice McCollum,

When this case was here before — 174 Pa. 369 — we held that the learned judge of the court below erred in admitting in evidence the declarations of Davis, the superintendent, to the effect that the hanger in question was, prior to the accident, condemned as defective. The objection to the declarations was that they were made several days after the accident and were, therefore, under a well-settled rule applicable to them, inadmissible in evidence for the purpose for which they were offered and received. In support of the rule above mentioned it is sufficient to refer to Railroad Co. v. Decker, 82 Pa. 119, and to the cases cited therein. We also held that the learned judge erred in his answer to the defendant’s seventh point. The error in the answer was the omission of any reference to the effect upon the plaintiff’s case of the unskilfulness or negligence of Taylor, his fellow-workman, in “adjusting the set screws too tightly — so much too tightly that the hanger was thereby broken.” As there was some evidence in the case which afforded ground for an inference that the unskilfulness or negligence of the plaintiff or of Taylor in adjusting the set screws was the cause of the accident, the omission was regarded as important and misleading. We did not affirm the defendant’s point, that “under all the evidence the verdict should be for the defendant,” but upon the grounds, and for the reasons above stated, we reversed the judgment and awarded a venire facias de novo.

On the retrial of the case the declarations or statements of the superintendent were rejected, and the instructions to the jury in regard to the effect upon the plaintiff’s claim of his own or his fellow-workman’s unskilfulness or negligence in adjusting the set screw too tightly, and thereby breaking the hangers, were unobjectionable. The rulings upon the offers to show the declarations of Davis, and the instructions in regard to the effect of negligence on the part of the plaintiff or of his fellow-workman, were clearly in accord with the opinion of this Court on the appeal from the 'first judgment. It follows, therefore, that they are not subjects of criticism or complaint on the present appeal.

We discover no error in the admission on the retrial of the testimony of Newlin Trainer taken on the first trial. The only objection made to its admission was that the plaintiff had not made proper efforts to secure Trainer’s attendance, and the answer to it was that he was not within the jurisdiction of the court. The testimony of Taylor taken on the former trial appears to have been read without objection. It may also be observed that Trainer and Taylor were called by, and witnesses for, the defendant on the former trial, and that the defendant did not question the correctness of the stenographic report of their testimony, nor intimate that if they wore present they would add anything to or in any degree qualify it.

We agree with the learned judge of the court below that the evidence was sufficient to send the case to the jury. The testimony of Trainer, Taylor, Brumwell and Maxwell fairly warranted a finding that Davis was a vice principal, and that he knew or ought to have known that the hanger was defective. The defect was developed by the accident. It may have been and probably was the cause of the latter. It was not apparent to the workmen prior to the accident, because the painting of the hanger some time before covered or concealed it. There is nothing in the evidence which indicates that the hanger was used between the second painting of it and the occurrence in question. The testimony relating to these matters raised questions which it was the province of the jury, under proper instructions from the court, to decide. It only remains to be seen whether the excerpts from the charge furnished satisfactory or substantial ground for reversing the judgment. It is possible that some of them, considered separately, may admit of criticism, but a careful examination of them in connection with tbe charge as a whole has not convinced us of reversible error.

Judgment affirmed.