Briggs v. East Broad Top Railroad & Coal Co.

Opinion by

Mr. Justice Potter,

The plaintiff in this case is the wife of George W. Briggs, who was killed while engaged as a conductor on the line of the East Broad Top Railroad & Coal Company, on March 6,1900. This company operated a narrow gauge railroad extending from Mt. Union, Huntingdon county, to Woodvale, in the same county, a distance of about thirty-six miles.

At the time of the accident, the deceased was in charge of train No. 6, going south from Orbisonia at a place called Martins Meadow. The train was a mixed one of freight and passenger cars. It was admitted that the accident was caused by the breaking of a rail. Plaintiff claimed that the proximate cause of the breaking of the rail was rotten ties. The railroad company defended on the ground that the breaking of the rail was caused entirely by a latent defect in the structure of the rail called a “ pipe.” "

At the trial, plaintiff offered evidence showing that the breaking of a rail caused the car on which her husband was riding to upset. She also called witnesses to show that at that point the ties, or some of them, were rotten. But none of these witnesses fixed definitely the location of the rotten ties. There was, however, some evidence that some of the ties under the rail were rotten, and were mashed by the car wheels after the train left the track.

The witness, Cox, was perhaps more exact than any other witness in attempting to locate the defective ties. He visited the scene of the accident the next day, and after a new rail had been laid to take the place of the broken one. While in answer to the question, “ With respect to the broken place in the rail, did you see any new tie there ? ” he testified, “ I saw one new,” he modified his answer by saying he thought it was at the exact place, but was not positive, and further qualified it by testifying that he saw no loose tie that had been taken out, nor did he see any digging, as if a tie had been removed.

Evidence was also introduced to show that two men had seen a large rusty crack in the rail at the place of the break the day before the accident, but there was no evidence that the defendant company had notice of the condition of the rail.

We do not regard this evidence as sufficient to justify a submission of the case to the jury. There was no definite testimony that the ties were rotten at the place of the break. A conclusion that they were would be nothing more than a guess.

When the evidence of the defendant upon this point is considered, the conclusion is irresistible that the break in the rail was not due to rotten ties. It tended to show that the break in the rail occurred between two ties ; that the condition of the ties was good; that the alignment of the track was all right, and that the rails had not spread; that on the Saturday previous the track had been inspected ; two experts testified that there was a latent defect at the place in the rail called a “ pipe,” which could not have been discovered by any inspection ; it was shown that a much heavier train had passed safely over the spot where the accident occurred about half an hour before the accident.

We do not consider that there is any real conflict in the evidence ; that on the part of the plaintiff in this respect being’ a mere guess as to the condition of the ties at the precise place of the accident, while the testimony on the part of the defendant is clear and positive.

Plaintiffs offered to prove that the defendant company had allowed its roadbed and its rails to fall into bad repair generally, and at places other than that of the accident.

Defendant’s counsel objected, in so far as the offer proposed to prove the condition of the road at another point than that where the accident occurred. This objection was sustained and rightfully, we think. The general condition of the road was not involved in the issue to be tried. The question was whether the train had been thrown from the track by reason of the negligence of the company or its agents or servants, at that point. Evidence of negligence at some other point, which did not contribute to this accident, was clearly incompetent. This principle has been clearly declared and sustained in other states. See R. R. Co. v. Fox, 11 Bush (Ky.), 495; Huntley v. R. R. Co., 38 Mich. 537. There the injury was caused by a passenger car being thrown from the track. The court says : “We are also of opinion that no defects in the track could be relied on to show negligence contributing to the accident except those existing where the track was injured or displaced, and that testimony as to the condition of the road away from the scene of the injury was improper, to make out a cause of action, and could only tend to raise false issues.” To the same effect is Morse v. R. R. Co., 30 Minn. 465.^*

We do not regard O’Donnell v. Allegheny Valley R. R. Co., 59 Pa. 239, as being in conflict with the doctrine of these decisions. In that case there was testimony that the injury arose from the breaking of a rail which was caused by its resting upon rotten ties. It was further shown that the ties were of hemlock and had been allowed to remain in place for twelve or thirteen years. This was regarded as clear evidence of negligence on the part of the company.

The plaintiff also complains here of the exclusion of proof of declarations made about half an hour after the accident by Harry Taylor, the division foreman. This evidence was properly excluded. It is clear that such declarations were not a part of the res gestee. When they were made, the time which had elapsed since the accident was sufficient to convert them into a mere narrative of a past occurrence. Wo think the trial court was justified in assuming the responsibility in this case, of directing a verdict for the defendant.

The assignments of error are all overruled, and the judgment is affirmed.

* Also reported, 16 N. W. Repr. 358. Reporter.