Lombard Pass. Ry. Co. v. Christian

Opinion,

Mr. Just toe Green:

The learned court below said in the charge to the jury, “ The driver’s evidence here is that he must have started the car before the plaintiff had time to get off, and that he was dismissed, on the ground that his negligence had produced the accident, by the president of the company.” An examination of the driver’s testimony shows that this was a mistaken representation of what he said. What the driver did testify on this subject was as follows: “ Heard bell ring, stopped the car and 1 looked in, I saw an old lady passing out of the car. I watched her until she had stepped down off the platform out of my sight. I then started the car and had proceeded but a short distance when some one notified me that the old lady had fallen. I then immediately stopped the car, and went back and found that she had fallen in the street.” This was the actual testimony of the driver, as delivered on the trial, in relation to the facts of the occurrence. Of course it was error to say of that testimony that the driver’s evidence here, that is, on the trial, “ is that he must have started the car before the plaintiff had time to get off,” and as this is a very material part of the case and may easily have misled the jury, the third assignment of error must be sustained. The error of the learned court was an inadvertence which grew out of another portion of the driver’s testimony. He was interrogated respecting another version of the matter which he had given at another time and which was reduced to writing and signed by himself. The paper being handed to him he read it and then said, speaking of its contents, “ It is right that I looked back and saw some one lifting her from the street. The paper says I started the car too soon. What I said was, I must have started it ■ too soon.” It will be seen at once that he was speaking of what he had said on the former occasion and was not testifying to the actual facts of the occurrence. It would have been a fair subject of argument by counsel for the plaintiff, and even of comment by the court, to the effect that inasmuch as he had formerly said he must have started the car too soon, that such must have been the fact notwithstanding his present testimony to the contrary, but in no point of view was it correct for the court to say positively that he testified in that way on the trial.

We think the remainder of the portion of the charge covered by the third assignment was also a mistaken presentment of the testimony. The court treats the testimony of this witness as direct, distinct, and affirmative proof that the president of the company had discharged the driver because “his negligence had produced the accident,” and then by way of comment he remarks to the jury that “ that fact is not controverted by any evidence on the part of the company.....and no attempt has been made on the part of the other officers of the company to deny this allegation.” Now in point of fact, there was no distinct proof by any witness that the driver was discharged because his negligence had produced the accident. There was at best but a presumption to that effect, and not by any means a strong one, derived by inference from the driver’s testimony. But it might very easily be that the driver was discharged merely because the accident occurred while he was driving and without any reference to the question whether it was liis negligence that produced the accident. The president of the company had no personal knowledge of the accident nor was he or any other officer of the company called to prove either the fact or the cause of the driver’s discharge, and it was scarcely a fair way to treat the testimony as if it was direct and uncontroverted proof that the driver had been discharged by the president because his negligence produced the accident.

Wo think the portions of the charge covered by the fourth and fifth assignments are objectionable. They tended to lead the jury to infer that the mere construction of the car was proof of negligence in producing this particular accident. As the accident arose from a totally different cause, it was error even to intimate to the jury that they might consider the method of construction as proof of negligence. These assignments are therefore sustained.

The sixth and seventh assignments are sustained because the witness, Mary A. Christian, was in no sense an expert, and of course was incompetent to testify to what was mere opinion in respect to her mother’s internal injuries. She could state distinct facts observed by herself, but certainly could not give her opinion that her mother suffered in her head and in her stomach. As to those subjects, she could have no actual knowledge of her own and no information, except from her mother’s declarations, which, of course, would be inadmissible both as hearsay and secondary evidence.

We think the tenth assignment is also sustained. The evidence offered and received was not an admission by the president of the company either that the accident was the result of the driver’s negligence or of any negligence at all. It -was but an admission that the driver was discharged because the accident had occurred. It could not be a binding admission that the accident was the result of the driver’s negligence, because the president was not present at the time of the accident, and had no knowledge of the facts of the occurrence and hence knew nothing to which he could testify, directly or by admission. What the president said could at the best" be merely an opinion of his own derived from the information of others, and hence could have no element of original testimony or of any legitimate substitute for it.

In Bigley v. Williams, 80 Pa. 107, we held that the declaration of the pilot of a steamboat, made within an hour after the occurrence of an accident, that the collision was caused by his neglect, was inadmissible as not being part of the res gestae. In the case of Baker v. Allegheny V. R. Co., 95 Pa. 211, the offer was to show a declaration of the defendant company’s superintendent, made after the. accident occurred, that the rope which caused the accident was unsafe. It was held that unless it appeared that the superintendent had had a previous knowledge of the rope, and the declaration was to the effect that he knew before the accident that the rope was unsafe, Ins opinion that it W9-S unsafe was inadmissible. In Oil City Fuel Supply Co. v. Boundy, 122 Pa. 449, we said: “ It is imperative in cases of alleged tortious conduct such as negligence, unless the act is specially authorized, that the admissions of the agent must be part of the res gestae. Otherwise they are hearsay. The agent himself can be called to prove the state of facts attempted to be proved by his admissions.”

Conceding that on account of the official position of the president of the company there is a wider responsibility for his admissions than in the case of an ordinary agent, a brief consideration of the testimony received under this assignment establishes its incompetency. The question put to the witness was not cross-examination in any point of view and should have been rejected for that reason. But the fact of the driver’s discharge was of no relevancy, except as it tended to prove the fact of negligence of the driver in the occurrence of the accident. That negligence was an inference to be drawn by the jury from the specific facts of the case, and not from the inferences or opinions of any one. Hence the declarations of any one, no matter who he might be, who was not present and had no personal knowledge of the transaction, could prove nothing more than his own opinion as to the ultimate and essential fact of negligence. This would be so where the declarations were directly to the point that there was negligence. But in the present case the evidence was quite short of this. The driver said the president “ asked me why I was discharged, and I said on account of an old lady falling from my car, and he says you had better say an old lady being thrown from your car.” How would this prove or even tend to prove that in point of fact the old lady was thrown from the car ? It might tend to prove that the president thought so, but his thinking so would depend upon the correctness of the information he had received from others, to which of course he could not testify directly, and most certainly not indirectly by way of admission.

In the case of the American Steamship Co. v. Landreth, 102 Pa. 131, we held it to be error, in an action by a passenger against a steamship company to recover damages for an injury sustained on board the vessel, to admit the declaration of the captain of the vessel made to the plaintiff and to another passenger immediately after the accident, that the place where it occurred was a very dangerous part of the ship and that he would have it remedied immediately, for the reason in part that it was a mere expression of opinion on the part of the master.

The language used by the president of the company in this case does not necessarily import anything more than his displeasure with the driver and is proof of absolutely nothing as to the actual facts of the occurrence. The tenth assignment is sustained. The remaining assignments are not sustained.

Judgment reversed and new venire awarded.