author: Mr. Justice Stewart,

text:
    First National Bank v. McBride, Appellant.

      Promissory notes — Accommodation Indorser — Notice of dishonor— Practice, C. P. — Affidavit of Defense.

    In an action on a note against an accommodation indorser where the statement simply avers that the note was not paid at maturity, due presentation and demand having been made, and that the defendant had due and timely notice of said nonpayment, and the notary’s certificate attached to the statement merely certifies that the notary exhibited the note where payable, at the proper time, and demanded payment which was refused, “the answer being no funds, whereof I duly notified the endorser,” an affidavit of defense is sufficient which contains a specific denial of oral service, an equally explicit denial that notice, of dishonor was sent in accordance with the requirements of law and a positive averment that no notice was ever received.
    Argued Oct. 31, 1910.
    Appeal, No. 181, Oct. T., 1910, by defendant, from order of C. P. No. 4, Allegheny Co., Second T., 1910, No. 560, making absolute rule for judgment for plaintiff for want of sufficient affidavit of defense in case of First National Bank of Sewickley v. Katherine A. McBride.
    Before Brown, Mestrezat, Potter, El-kin, Stewart and Moschzisker, JJ.
    Reversed.
    Assumpsit on a promissory note. Before Swearin-gen, P. J.
    Defendant filed the following affidavit of defense:
    It is true and deponent admits the execution on December 11, 1909, by the Pittsburg Tubular Steel Whiffie-tree Company of the note, a copy of which is attached to plaintiff’s statement of claim. She avers, however, that she indorsed said note for accommodation only; that she received no value and had no interest whatever in said note other than that of an accommodation indorser.
    She avers that she has no knowledge of presentment of said note at maturity, but if same was presented for payment and payment was refused, she had no notice of the nonpayment and in the absence of notice to her of the nonpayment she is advised and believes that there is no liability for her indorsement. The deponent has no knowledge that said note was protested and she therefore denies and demands proof of the same. She avers, however, that if said note was protested the notice of the same was not sent her in accordance with the law concerning notice of nonpayment.
    Defendant filed a supplemental affidavit of defense as follows:
    She has no knowledge that the note sued upon was not paid and she therefore denies and demands proof of the same.
    She avers that she did not receive any notice of nonpayment whatever, either verbal or in writing, actual or constructive, until a long time after said note was due and that the first and only notice received by her in regard to the nonpayment of said note was by a letter received from plaintiff’s attorneys some time in March, 1910, or the latter part of February, 1910.
    January 3, 1911:
    She avers that she has and had at the time said note was due a well-known place of residence at 1406 Pennsylvania avenue, Allegheny, Pa., now a part of the city of Pittsburg, and that she did not receive any notice there or at any other place, nor did any one on her behalf receive any notice there or at any other place.
    She calls upon plaintiff to produce the original note, to declare when notice was given, how it was given and if by mail, to what address the same was sent.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was in making absolute rule for judgment for want of a sufficient affidavit of defense.

      John E. Laughlin, for appellant.

      W. D. N. Rogers, with him O. S. Richardson, for ap-pellee.
   Opinion by

Mr. Justice Stewart,

This was an action against an accommodation indorser. Judgment was rendered against the defendant for want of a sufficient affidavit of defense. Whether the affidavit was sufficiently responsive to the statement of the cause of action is the question. Except as the defendant was duly notified, in accordance with the requirements of the law, of presentment, demand and failure to pay, she was discharged from liability on the note. The affidavit distinctly denies personal service of notice, orally or otherwise. If it stopped here, its insufficiency would be apparent, for the reason that personal service is not required. • Notice of dishonor duly addressed, that is to say, addressed to the party to be served, and to the post office nearest his place of residence, or to the post office where he is accustomed to receive his letters, and deposited in the post office, is sufficient in law, notwithstanding any miscarriage in the mails. The plaintiff’s statement simply avers that “ the note was not paid at maturity, due presentment and demand having been made, and that the defendant had due and timely' notice of said nonpayment.” The certificate of the notary is made part of the statement. It certifies that the notary exhibited the note where payable, at the proper time, and demanded payment which was refused, the answer being “No funds, whereof I duly notified the endorser.” If it be allowed that such certificate of notice falls within the Act of December 14, 1854, P. L. (1855) 724, which makes the certificate of a notary prima facie evidence of the facts therein stated — a matter we do not now decide — for quite as much reason should it be held that the affidavit here filed meets all the requirements as to sufficiency. The former certifies that the indorser, this defendant, was' duly notified. This is but another way of saying that the notice was given in accordance with the requirements of law. But how was it given, in which of the two ways allowed by law, orally or by mailing? The certificate is silent as to this. Now if we turn to the affidavit we find that oral service is specifically denied; and equally explicit is the denial that notice of dishonor was sent in accordance with the requirements of law. These denials are followed by the positive averment that no notice was ever received. The averment in the original affidavit is, that if said note was protested the notice of the same was ndt sent in accordance with the law concerning notice of nonpayment. The denial was as specific as the certificate; and that is all a plaintiff has a right to require. Had the statement averred that the notice had been given in some particular way allowed by law, nothing but a specific denial of the fact alleged would have been sufficient to prevent judgment. To require more than this would be to put an indorser upon inquiry as to something determining his liability, of which the statement of the cause of action gave no notice, and which it would be next to impossible for him to discover. The case is closely par-allelled by that of McPherson v. Allegheny National Bank, 96 Pa. 136, the only variance being that in that case it does not appear that the statement was accompanied by a notary’s certificate. The variance is immaterial, for we are not here considering whether the certificate of the notary in this case falls within the provisions of the statute which makes the certificate prima facie evidence of the facts contained in it. That question will arise on the trial of the case. We have now but to regard the certificate as part of the plaintiff’s statement and judge of the sufficiency of the affidavit by its responsiveness. Speaking of the statement of the cause of action in the case referred to, Green, J., says, “It does not state when or in what manner it (notice of dishonor) was given, nor does it give any particulars of. the protest. Its averment of notice is in the most general language, this, if denied in the terms of the allegation, is sufficiently denied for the purpose of an affidavit of defense. The plaintiff in his affidavit says 'the defendant had due notice.’ The defendant in his affidavit, says ‘Due notice of nonpayment was not given to affiant.’ The substance of plaintiff’s allegation is that defendant had notice. The substance of defendant’s allegation is that no notice was sent to him, and he supplements this by a more specific denial than was really required, by saying that he never received any notice whatever until suit brought. This is a full denial, in the very terms of the plaintiff’s allegation, of the vital fact of notice. It put the plaintiff to proof of the notice before he can recover. It is difficult to see how the defendant could possibly have made more specific denial than he did. Had the plaintiff alleged that on a certain day named, a certain person, also named, had deposited in the proper post office a letter addressed to the defendant at his proper post office, containing a written or printed notice that the note had been presented for payment at the proper place and time and was not paid, it might well have been claimed that these facts must have been negatived by specific denial in the affidavit of defense. But without such averment it would be asldng the impossible to require such denial, since the defendant could not know that such facts were averred against him. The court below could not, and we certainly do not, know how the fact of notice is to be made out. How then in the face of the defendant’s denial can any judgment be rendered against him on the present state of the record.” We have quoted at length from the opinion so that the parallel as to the facts, and the applicability of the law as there stated, may clearly appear. The case of Zollner v. Moffitt, 222 Pa. 644, calls for no comment. Nothing there said conflicts in the slightest degree with the view here expressed. That case is sufficient authority in itself for our present ruling.

Judgment reversed and procedendo awarded.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Tarentum Realty Company v. McClure et al. Appellant.

      Contract — Bond—Conditions—Notice—Waiver—Principal and agent.

    1. In an action against a surety on a bond taken to insure the performance of a building contract, the defense was that the obligee, disregarding the conditions of the bond, had neglected to give the surety, notice of the contractor’s default in not finishing the building at the time specified, and had not retained the agreed percentage of the contract price. The bond was executed only seven days before the time originally agreed upon for the completion of the building, and was conditioned for one year, and there was evidence of a subsequent course of dealing showing that neither party insisted upon completion at the time specified. There was other evidence that the surety had advised the use of the retained percentage for the settlement of unpaid bills to avoid threatened liens, and that such payment was made with the knowledge and consent of an alleged agent of the company. Held, that the question of the surety’s liability was properly for the jury.
    2. Bonds are presumptively intended to secure losses sustained after and not before their execution, but such presumption may be overcome if the facts show that past as well as future defaults were intended to be covered by the bond.
    Argued Oct. 31, 1910.
    Appeal, No. 184, Oct. T., 1910, by American Surety Company, defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1906, No. 33, on verdict for plaintiff in case of Tarentum Realty Company v. Frank P. McClure and the American Surety Company of New York.
    Before Brown, Mestrezat, Potter, El-kin, Stewart and Moschzisker, JJ.
    Affirmed.
    Suit on a bond taken to insure the performance of a building contract. Before Frazer, P. J.
    The opinion of the Supreme Court states the facts.
    The defendant asked the court to charge as follows:
    1. Under all the evidence the verdict should be for this defendant. Answer: Refused. [3]
    2. If the jury believe that no extension was granted on the time of completion of the Tarentum Opera House beyond the time set in the contract, to wit: October 16, 1905, failure to complete the building at such time was a default within the terms of the clause of the bond providing for notice to surety. Answer: Refused. [4]
    3. Continual failure on the part of the contractor to pay the bills of subcontractor and materialmen constituted a default within the terms of the bond upon which this suit is brought, and if the obligee had notice of the default a failure to notify the surety as provided by the terms of the bond discharges the surety. Answer: Refused. [5]

      Errors assigned among others were (3-5), answers to defendant’s points as above.
    Verdict and judgment for plaintiff for $7,851.51. Defendant appealed.

      E. W. Arthur, with him J. M. Magee and W. S. Thomas, for appellant.
    Failure to notify the surety company immediately of the contractor’s default was a clear breach of the covenants of the bond: National Surety Co. v. Long, 125 Fed. Repr. 887; Robbins v. Robinson, 176 Pa. 341; Lancaster v. Barrett, 1 Pa. Superior Ct. 9; Ben-singer v. Wren, 100 Pa. 500; Bauschard Co. v.-Fidelity & Casualty Co. of N. Y., 21 Pa. Superior Ct. 370.
    January 3, 1911:

      John S. Ferguson, with him J. Frank Poffer, for appel-lee.
   Opinion by

Mr. Justice Elkin,

This is a suit on a bond taken to ensure the performance of a building contract. The defense is that the ob-ligee disregarded certain conditions of the bond requiring notice of defaults and the holding of retained percentage. The principal default relied on, notice of which was not given within thirty days, was the failure to complete the building at the time specified in the contract. This needs an explanation. The building contract was between McClure, one of the appellants, and the Tarentum Realty Company, the appellee. It was dated July 1, 1905, and provided for the completion of the building on or before October 16, of the same year. Subsequently this contract, presumably with the consent of all interested parties, was assigned to the Wilson Construction Company. No bond was given for several months after the original contract was entered into and when the bond was given it contained a recital of the assignment of the building contract to the company above indicated and recognized that company as being obliged to perform its covenants. When the bond was executed on October 9 only seven days remained .in which to complete the building according to the terms of the contract. In the very next paragraph after the one providing for notice of defaults it is provided that no suit or action shall be'instituted against the principal or surety by reason of any such default after October 9, 1906, which was exactly one year from the date of the execution of the bond. Here then was a bond, executed seven days before the date fixed by the contract for the completion of the building, containing a provision that defaults occurring any time within the year following its execution should be considered as within the contractual obligations of the obligors. Surely this can only mean the parties knew and had in contemplation at the time the bond was executed that the building could not be completed in the seven days remaining in which to complete according to the contract, and that additional time would be required to fully perform the same. If this were not the situation in the contemplation of the parties these clauses are meaningless under the facts of this case. Then, too, the course of dealing between the parties subsequent to the execution of the bond shows that the completion of the building on the day specified was not contemplated nor insisted upon by either the obligee or obligors. They all treated that provision as waived. It is further contended that there were other defaults by the contractor of frequent occurrence during a period of several months after the execution of the bond of which appellants should have been notified and that failure to give the thirty days’ notice as required relieves the surety from its obligation to indemnify. This contention is based upon the assumption that failure of the contractor to pay for labor and materials and his delinquency in prosecuting the work amounted to a default within the meaning of the bond, of which notice should have been given the obligors. The bond does not define what is meant by a default and the evidence gives but little light on the question. There was some delay in completing the building, but treating the duty to complete at the time specified in the contract as waived, no definite time was fixed for the completion, and this is true as to the payment of bills by the contractor. In view of these facts the instructions to the Jury by the learned court below are not objectionable. There was no error in this respect. The same may be said as to the covenant requiring fifteen per cent of the contract price to be retained. The bond was given seven days before the date fixed by the contract' for the completion of the building. The general rule is that bonds are presumptively intended to secure losses sustained after and not before their execution. . This, however, is only a presumption which may be overcome if the facts show that past as well as future defaults were intended to be covered by the bond: Com. v. Fidelity & Deposit Co., 224 Pa. 95. In the present case there is nothing in the record to disclose such an intention and the presumption therefore is that the bond was intended to cover future defaults. The evidence does not show how. near completion the building was when the bond was executed, nor what was the situation as to the retained percentage at that time, or whether there had been any default prior to that date. Presumably the surety company after investigation of the existing conditions took upon itself the obligation of suretyship for such defaults as might subsequently occur. The retained percentage was intended as a means to compel complete performance and as a protection against claims or 'liens that might be made or filed. Evidently on account of the uncertain conditions existing at the time the bond was executed and by reason of what subsequently occurred all parties adopted a course of dealing as the best means of safeguarding their interests. Bills had accumulated and demands for payment were insisted upon. The contractor either would not or could not pay. Liens were threatened and the situation demanded some kind of action. The surety company was notified of this situation. At this juncture the witness, Beatty, appeared on the scene and proceeded to investigate conditions. He came as the representative of those responsible for the bond. There is a dispute as to whom he represented, but this question was left to the jury and under all the circumstances, properly so. His testimony was that he represented the bond but not the surety. This is an anomalous position to say the least, but in the light of what he did while on the ground and in view of the correspondence with the surety company relating to his presence and the conditions discovered by him and reported either by himself or others, we think the trial judge was warranted in submitting the question of his authority to the jury. At the time Beatty came upon the ground the appellee had in its hands the fifteen per cent required to be held. All payments made while Beatty was there were with his knowledge and consent. Then there was the letter from the counsel and an officer of the surety company directing appellee to either hold the retained percentage as a protection against unpaid bills or to pay the bills out of the fund so retained. This advice was followed. Under all of these circumstances it was for the jury to say whether the appellee was warranted in paying the bills out of the retained percentage. The charge of the learned trial judge presented the whole case in an intelligent and impartial manner and the weight of the evidence was for the jury.

Judgment affirmed.


author: Per Curiam,

text:
    Hoffman v. Consolidated Traction Company, Appellant.

      Negligence — -Street railways — Children in street — Duty of motorman.

    In an action against a street railway company to recover damages for injuries received by a three year old boy, the case is for the jury where there is testimony that the child was struck because the motorman, instead of keeping his eyes on the track before him as the car turned from one street into another was looking in a different direction.
    Argued Oct. 31, 1910.
    Appeal, No. 186, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1902, No. 190, on verdict for plaintiff in case of Thomas Hoffman by his father and next friend Frank H. Hoffman v. The Consolidated Traction Company.
    January 3, 1911:
    Before Bbown, Mestbezat, Potteb, Elkin, Stewabt and Moschziskeb, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Fobd, J.
    The opinion of the Supreme Court states the case.
    Verdict for plaintiff for $9,300 which was afterwards reduced to $5,000 and judgment thereon. Defendant appealed.

      Error assigned was refusal of binding instructions for defendant.

      Walter M. Lindsay, with him Clarence Burleigh and William A. Challener, for appellant.

      Rody P. Marshall, with him Thomas M. Marshall, for appellee.
   Per Curiam,

At the time the plaintiff below was struck by a car of the defendant company he was less than three years old. It may be, as contended by the appellant, that he darted immediately from the sidewalk against the front of the car, but, according to the testimony of Wierst— whose credibility, notwithstanding his apparently conflicting statements, was for the jury — the child was struck because the motorman, instead of keeping his eyes on the track before him as the car turned from Evergreen avenue to Klopfer street, was looking in another direction — down Evergreen avenue — where some children had gathered around a goat, and the injured child was on his way to these children when the car struck him. A motorman, while operating his car, must be constantly on the alert to avoid danger and should never allow his attention to be diverted from his duty to' keep his eyes on the track before him. If he neglects his duty and an accident occurs by reason of such neglect, his employer must expect to be held responsible: Schnur v. Citizens’ Traction Co., 153 Pa. 29. As the case was for the jury, the judgment on their verdict is affirmed.


author: Mr. Justice Moschzisker,

text:
    Rosenstiel v. Pittsburg Railways Company, Appellant.

      Negligence — Street railways — Incompetency of motorman — ■Notice— Dispatcher.

    1. In an action against a street railway company to recover damages for death, where the principal issue concerns the alleged incompetency of a motorman and notice of that fact to the company, the case is for the jury where the plaintiff produces proof of the motorman’s general reputation for incompetency, although the alleged incompetency arose after his lawful employment, and although the evidence did not tend to prove a bad reputation for the precise kind of negligence which caused the injury in question.
    2. Incompetency of a fellow employee must be established by evidence of general reputation, and cannot be proved by specific acts.
    3. It is not necessary to prove that the person whose incompetency is at issue had a bad general reputation for the precise character of negligence which caused the injury. Proof of habitual recklessness and carelessness in the work he is employed to do is sufficient.
    4. In a damage suit against a street railway company where the principal issue is the incompetency of the motorman and knowledge thereof on the part of the company, the action of the court in submitting to the jury, as evidence from which the fact of notice might be found, the narration of a statement concerning the incompetency of the motorman made by the witness to a “dispatcher” of the company on the occasion of a car running off the track, constitutes reversible error, if there is no evidence that the dispatcher had authority to employ or discharge.

      Evidence — Error in admission — Instruction to disregard.

      5. Where evidence which tends to prejudice the minds of the jurors has been improperly received, the error is not cured by an instruction to disregard, and the action of the court in not only failing to withdraw such objectionable testimony, but in submitting it to the jury and telling them to consider it in determining the issues, constitutes reversible error. Such evidence should be withdrawn for every purpose and stricken from the record before counsel make their addresses to the jury.
    Argued Oct. 31, 1910.
    Appeal, No. 154, Oct. T., 1910, by defendant, from judgment of C. P. No. 3, Allegheny Co., August T., 1906, No. 721, on verdict for plaintiff in case of Ida B. Rosenstiel v. Pittsburg Railways Company.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Evans, J.
    The facts appear in the opinion of the Supreme Court.
    The trial judge, in the course of his charge, instructed: “The employer is never liable to the employee for an injury occasioned through the negligence of a fellow employee unless the employer was negligent in keeping an incompetent man in its employ. So that it becomes important, if you come to that question, to determine whether Staley was a competent or an incompetent man. The only evidence here as to his competency would go not to the knowledge of the duties of his employment, but to his reckless manner of performing those duties. Was he such a reckless man? is the first question. Was he such a reckless man as to render him unfit to be placed in the position in which he was placed, in charge of the motive power of his car? .... The test is: Was he reasonably competent? Under the circumstances, did his recklessness go beyond the average carelessness of men in his employment? The evidence on the part of the plaintiff on .that subject is evidence of reputation. You can see probably the difficulties that present themselves to both sides on a question of this kind when you have in consideration the question of a man’s character for any purpose, and require that character to be proven from the witness stand. As I have stated, it is not the fact that he may have been negligent at one time, or twice; it is not a question of whether he has accidents happen to the car which he was operating; because then the question arises as to whether such accidents were due to his negligence or whether they were not. And so it is not absolutely determined by the question as to what a man’s reputation is; because a man may have a reputation which he does not deserve. [The question for your determination is: Was he so reckless in the discharge of his duties as to render him unfit to be kept in that position? Not, did he have such a reputation? That is not the first question here. But, has the evidence of reputation satisfied you, or can you find from the evidence of reputation, that he was in fact unfit for this position by reason of his negligent habit?] [12] If you find that in the negative, that is, if you find that the evid'ence does not justify your finding that he was of such negligent habits as to render him unfit to be placed in this position, then your verdict should be for the defendant. If, however, you find that he was unfit to be placed in the position as a motorman in charge of a car, then the next question for your consideration is: Was the fact that he was incompetent known to this company? Or, was his incompetency such — did it so manifest itself, that the company should have known it had they exercised the ordinary care which an employer is bound to exercise in the supervision of its employees? We have evidence on the part of the plaintiff of his reputation which also goes to the question as to whether his character was known to his employers or should have been known. We have evidence of one witness, I believe, that complaint had been made to the división superintendent, or possibly not a complaint, but that a statement of this man’s character had been made to a division superintendent and that statements of the fact had been made to dispatchers. [There is no evidence that any statement was made to any person who had the power to discharge Staley; but there is evidence that reports of this kind, under the rules of the company, should be made to the division superintendent. Now, in passing upon this question, if you come to that, as to whether or not Staley’s character for care was known or should have been known to his employer, you consider evidence of his reputation and the evidence of the information given to the different persons in the employ of the defendant company.] [13] If you find that he was incompetent, but that that fact was not known to his employer and by the exercise of reasonable care could not have been'known to his employer, then your verdict should be for the defendant. But if you find .... that Staley was incompetent and that his incompetency was known to his employer, then your verdict should be for the plaintiff.”
    Verdict and judgment for plaintiff for 16,000. Defendant appealed.

      Errors assigned were (1) refusal of binding instructions for defendant; (2) refusal of defendant’s motion for judgment in its favor n. o. v. (12, 13) portions of charge as above quoting them; (3-11, 14) various rulings on evidence sufficiently appearing in the opinion of the Supreme Court.

      William A. Challener, with him Clarence Burleigh, for appellant.
    Under our authorities proof of reputation is good evidence only when it relates to the character of the person prior to the employment and that such evidence is not admissible when the alleged incompetency of the employee arises after his lawful employment; as to the latter, proof of actual incompetency must be made: Stasch v. Cornwall Ore Bank Co., 19 Pa. Superior Ct. 113; Frazier v. Penna. R. R. Co., 38 Pa. 104; Snodgrass v. Carnegie Steel Co., 173 Pa. 228.
    There was no notice given to the defendant: Reiser v. Penna. Co., 152 Pa. 38; Gier v. Los Angeles Consolidated Electric Ry. Co., 108 Cal. 129; Haskin v. N. Y. Cent., etc., R. R. Co., 65 Barbour, 129; Hatt v. Nay, 144 Mass. 186.

      Ralph P. Tannehill, for appellee.

      January 3, 1911:
   Opinion by

Mr. Justice Moschzisker,

Crawford B. Rosentiel, a lineman in the employ of the defendant company, was killed on November 10, 1905, while engaged at work on the repair of an overhead trolley wire. His death was due to the act of Joseph Staley, a motorman in the employ of the same company, who ran his car into the ladder upon which Rosentiel was standing. The plaintiff, the decedent’s widow, recovered a verdict, and the defendant has appealed. The statement of claim avers the facts as we have given them, with certain details surrounding the accident, that Staley was a reckless, careless, and incompetent employee, and that this was known, or should have been known to the defendant had it made a reasonable and proper investigation. The issues on the negligence of Staley and the contributory negligence of the decedent were properly submitted to the jury, and the only questions raised by the assignments of error go to the issues concerning the alleged incompetency of Staley and notice of that fact to the defendant. In this relation, the appellant attacks certain rulings on the evidence and the charge of the trial judge, contending that the evidence was incompetent and insufficient; that it should not have been submitted to the jury, and that the court should have given binding instructions for the defendant.

Without quoting in extenso from the testimony, there was evidence to show that Staley had been employed by the defendant from 1902 until the time of the accident; that during this period his reputation for care, skill and competency as a motorman was “bad,” and that of “one who was continually running reckless at places where he should not;” that he was “very reckless,” “a careless and reckless motorman,” “a wild, careless sort of a fellow;” one who had worked with him stated that “he was a reckless runner;” another, “He was sort of reckless.” Mr. Harget, a witness who had been superintendent of construction on a branch of the defendant company’s road between 1902 and 1904, testified that he had held a conversation with a Mr. Lawton, who was the superintendent of the division upon which Staley was then employed; that “in a discussion of the employees in general,” Mr. Lawton mentioned Staley, and the witness then said that he had been a passenger on Staley’s car upon several occasions, that he had observed his actions and thought Staley “very reckless;” that Lawton replied, “I know what you tell me is true, and eventually he will have trouble.” The occasion for, or the object of, this conversation does not appear. There was testimony also of - a statement or complaint made to a Mr. Fitch, one ' of the dispatchers of the defendant, concerning Staley on a particular occasion when his car ran off the track. This Mr. Fitch was the only witness produced by the defendant. He testified that he had been with the company since 1902; that he had worked himself up from motorman to division superintendent; that he had known Staley for some years; that he had seen him operating his car frequently between 1902 and 1905; that “Mr. Staley was a good, competent motorman;” that he did not remember that the alleged complaint had „been made to him. Speaking in reference to the operation of the cars, he further testified that “the proper person was the division superintendent to make .complaints to,” and that “complaints of the character of which you were speaking should go properly to the division superintendent.”

The issues concerning Staley’s incompetency and the defendant’s knowledge of that fact, were submitted upon this testimony. The trial judge instructed the jury that it was incumbent upon the plaintiff to establish “that Staley was an incompetent motorman because • of his reckless and careless habits; that the fact that he was incompetent to occupy the position which he did was known, or, under the circumstances, should have been known, if reasonable, ordinary care had been exercised by the defendant corporation.” This was followed by explicit instructions upon the several points in the case and the law in relation thereto, as appears by the abstract from the charge printed in the reporter’s notes preceding this opinion.

While we find no reversible error in the statements of law contained in the charge, the point is, Was there any evidence to justify a submission of the issues in question? Counsel for the appellant argues that there was not; that the plaintiff had not produced anything more than proof of reputation; “that under our authorities proof of reputation is good evidence only when it relates to the character of the person prior to the employment, and that such evidence is not admissible when the alleged incompetency of the employee arises after his lawful employment; as to the latter, proof of actual incompetency must be made.” He further argues that the evidence offered by the plaintiff was faulty in that it did not tend to prove a bad reputation for the particular kind of negligence which caused the injury in this case. We must consider the soundness of these propositions.

The leading case in Pennsylvania upon the subject of the evidence required to show the incompetency of a fellow-servant is Frazier v. R. R. Co., 38 Pa. 104. There the action was by a brakeman to recover damages for personal injuries caused by the negligence of a conductor. The declaration averred that the defendant had “on the day on which the collision happened, carelessly and wrongfully put the said train under the conduct and charge of one Henry Schaeffer, in the capacity of conductor, etc.; that said Schaeffer was at the time a ‘reckless, untrustworthy, careless and negligent man, and not skilled in the duties which appertained to the office or situation of a conductor of a train.’ . . .; that said company at and before that time, well knew that Schaeffer was a careless, .... man, . . . .; or that the defendant might with proper care have known the character of the conductor. . . .” At the trial the plaintiff proved that Schaeffer “had had several collisions on the road before, for which he was fined by the company, and that the agents, etc., of the company, knew this; that the former collisions were caused by his carelessness. . . .” The report further shows that the defendants objected to this testimony on the ground that “previous acts of negligence are not matter for the jury as to general character.” In reversing the judgment, Mr. Chief Justice Lowry said: “The fundamental averment here is that it was because of the carelessness of the conductor that the brakeman was injured, and, in order to show that the company was responsible for this it is averred that they were in fault in knowingly or negligently employing a careless conductor. . . . The question of character thus became an important one, and we are constrained to say that it was tried on improper evidence. Character for care, skill and truth of witnesses, parties or others, must all alike be proved by evidence of general reputation, and not of special acts. The reasons for this have been so often given that we need not repeat them: 1 Greenl. Ev., secs. 461-469; Elliott v. Boyles, 31 Pa. 65.” From the report of this case, it is evident that the negligence averred was not the employment of an incompetent conductor, but the’ retention of the conductor after his incompetency had arisen. This is clearly demonstrated when we consider the pleadings, and the fact that the very testimony, the admission of which caused the reversal, was of particular prior acts of negligence committed by the conductor while he was in the employ of the defendant company. When the writer of that opinion used the word “employing,” he evidently meant it in the sense of “keeping in employ,” and where he subsequently used 4he word “employ,” it was in tie sense of “have in its employ.” Therefore, at the very outset we meet with this case which is squarely against the contention of the appellant.

A study of the other cases submitted by counsel for the appellant, and of those disclosed by our own research, fails to convince us that this court has modified or departed from the rule laid down in the Frazier case. At first blush Huntingdon & Broad Top Mountain R. R. & Coal Co. v. Decker, 82 Pa. 119, would seem at variance with that case, but consideration will show this not to be the fact. The offer there was to show that the conductor, whose competency was at issue, was “of intemperate habits; that he had been repeatedly discharged by McKillips (the superintendent) for disobedience of orders and drunkenness.” In sustaining the admission of this testimony, we said, “It was clearly competent to prove Bowser’s (the conductor’s) accustomed disobedience of orders and his habitual drunkenness; that these facts were known to the superintendent, who had the entire control and management of the road, including the right to employ and discharge conductors.” Proof of the disobedience of an order differs from proof of a special act of negligence. The former would usually present a single issue, whereas the latter, to be of any real value, would practically mean the trial of another negligence case; and, if more than one special act were alleged, it would mean the trial of as many negligence cases as there might be specific acts of negligence involved. In addition, in the case under review, the element of habitual drunkenness was coupled with the disobedience of the orders, and we have expressly ruled, “if by direct evidence it appear that the conductor was a man of intemperate habits, it would cast upon the defendants the burden of proving that he was not intoxicated at the time. . . . Where a habit of intoxication in a conductor is shown, it raises, in the case of an accident, the presumption of negligence:” Penna. R. R. Co. v. Books, 57 Pa. 339.

The case of Snodgrass v. Carnegie Steel Co., 173 Pa. 228, relied upon by the appellant, is not at variance with the Frazier case. In the first place, Mr. Justice Green starts his opinion by quoting the rule laid down in the Frazier case; after which he says: “In order that the plaintiff might recover against this defendant he was bound to show by affirmative testimony, .... (2) that Snyder was an incompetent servant for the duty he had to perform, and (3) that the fact of his incompetency was known to the defendant when he was employed by means of his having a reputation for incompetency or by acquiring a knowledge of it during his employment and before the accident.” There is nothing in this which rules that incompetency arising after employment, or the knowledge of such incompetency, could not be proven by evidence of general reputation. Then, too, the opinion in that case expressly states that there was no proof that Snyder had the reputation of being incompetent. “Not a word of testimony was given or offered on this most vital subject. Not a witness testified that he had such a reputation.”

The appellant calls our attention to the case of Stasch v. Cornwall Ore Bank Co., 19 Pa. Superior Ct. 113; concerning which it is sufficient to say that the case relies upon those we have already cited, and there is no ruling in it at variance with our decisions. The latest Pennsylvania cáse upon the subject is Zeigler v. Simplex Foundation Co., 228 Pa. 64, which is in accord with our other cases.

When we look at the cases cited from other jurisdictions, there seems to be a divergence of view in the different states. The law of New York is that incompetency cannot be shown by general reputation, but must be shown by specific acts: Park v. N. Y. Cent., etc., R. R. Co., 155 N. Y. 215; the same rule prevails in California: Gier v. Los Angeles Consolidated Electric Ry. Co., 108 Cal. 129, and in Indiana: Pittsburg, Ft. Wayne & Chicago Ry. Co. v. Ruby, 38 Indiana, 294; while Massachusetts follows the Pennsylvania rule, holding evidence of specific acts to be inadmissible on the ground that, “they would necessarily have a tendency to confuse the case by collateral issues, to protract it indefinitely if those inquiries' were carefully made, and to mislead and distract the court and jury from the true issue:” Hatt v. Nay, 144 Mass. 186.

It is not necessary to prove that the person whose competency is at issue had a bad general reputation for the precise character of negligence which caused the injury. Proof of habitual recklessness and carelessness in the work he is employed to do is sufficient. In Frazier v. Penna. R. R. Co., 38 Pa. 104, the court charged: “The question is was he a careful and competent conductor? Or was he careless and imprudent and incompetent in the discharge of his duties? If he was the latter, and the company knew it, it was their duty to discharge him. And their neglect in not discharging him renders them liable for any injuries resulting from his carelessness, although it might not be of the same specific character of the careless acts he has been guilty of before.” While the assignment of error embracing this particular instruction was not expressly passed upon, the opinion in that case ends by saying: “These views seem to cover all the points that stand in need of correction by us.” In Huntingdon, etc., R. R. & Coal Co. v. Decker, 82 Pa. 119, where the negligence was the failure on the part of a conductor to obey an order, and the incompetency of the conductor was at issue, evidence was admitted to show that his “character, as a conductor was that of a reckless, careless man .... who was unfit for the position of conductor.” In reversing upon other assignments, we said that we discovered no substantial error in the remaining assignments, among which was one covering the admission of the testimony just referred to.

Our conclusions upon the points under consideration can be best summed up in the language of the learned judge of the court below in his opinion refusing a new trial: “Character in Pennsylvania is established by reputation and not by specific acts. The law recognizes that a careful man may sometimes do acts of negligence, and it is only the care or character of the ordinary man that is required. Besides, the introduction of evidence of specific acts of negligence would confuse the issue on trial. Every alleged act of negligence would raise a new issue which would have to be tried and determined by the jury. It would be unfair to the defendant, for he would have no notice and no opportunity to meet the alleged acts of specific negligence.” Aside from these practical reasons for excluding evidence of specific acts of negligence, the theory seems to be that, when a servant’s general reputation for negligence, carelessness or incompetency is properly established, the reputation is assumed to reflect the character to such an extent that the fact of the actual existence of such a character may be found therefrom, as well as the fact of the master’s knowledge that the servant had such a character. We are of the opinion that no error was committed in admitting the testimony of general reputation, or in submitting it to the jury on the issues as to the incompetency of the motorman and the defendant’s knowledge thereof. Although the testimony set forth in some of the assignments, standing alone, may appear faulty, it has a different aspect when taken with its context; and as a whole, it was sufficient in quality and quantity to justify its submission. The assignments of error three to eleven, in- ■ elusive, are all dismissed.

The first two specifications of error go to the refusal of binding instructions and to the denial of judgment for the defendant. While these assignments simply raise the question of the sufficiency of the evidence produced by the plaintiff, we take occasion to say that there was no effort on the part of the defendant to meet the evidence of bad reputation by counter evidence of good reputation; and there was no attempt to show by the official designated to receive complaints or by the official whose duty it was to discharge, that in point of fact they did not know of the motorman’s bad reputation, or to show that prior to the accident the defendant had investigated and had failed to find any foundation for the alleged bad reputation. After producing one witness who expressed his opinion that Staley was a competent motorman, the appellant rested its case. We cannot rule that the court below was in error in refusing binding instructions or in subsequently refusing to enter judgment n. o. v. for the defendant. Assignments one and two are dismissed.

The twelfth assignment raises a point not yet touched upon. In addition to the evidence of general reputation, the plaintiff relied upon the statement made by Mr. Law-ton to the witness Harget. The testimony is very meager, but it might justify the inference that Harget was addressing Lawton as a division superintendent, and that the conversation was in reference to the recklessness of Staley as a motorman. No denial of this conversation was entered by the defendant, and the ¶ plaintiff argues that when Mr. Lawton said, “I know what you tell me is true, and eventually he (Staley) will have trouble,” he uttered an admission showing knowledge on the part of the company of the incompetency of Staley. The appellant replies that the evidence was too vague to justify a finding thereon, and besides, as there was no evidence that Mr. Lawton had the power to employ and discharge, his admission could not bind the defendant company. There was evidence, however, that Mr. Law-ton was the general superintendent of the division in which Staley was employed, and that he was the person designated to receive complaints concerning employees and their management of the cars. This being the fact, any knowledge of Staley’s incompetency possessed by Lawton in his official capacity, would be fixed upon the officer whose duty it was to employ and discharge men, and hence upon the defendant company. But the appellant points to the case of Snodgrass v. Carnegie Steel Co., 173 Pa. 228, and contends thereunder that the evidence was of no value to show an admission. The information conveyed and the reply made by the superintendent in that case are of a different character from those in this case, and the one does not in any sense rule the other. We are of the opinion that, when properly shown, Mr. Lawton’s admission of knowledge of the incompetency of ah employee would bind the defendant company. It is not necessary to decide whether or not the testimony offered was sufficient for that purpose, as the judgment in this case must be reversed on other grounds which we are about to discuss. But since the case will go back for a new trial, we call attention to the fact that the testimony concerning Mr. Lawton’s alleged admission and his powers and duties as division superintendent, as it appears upon the present record, is most lacking in essential detail. Testimony of this character must be susceptible of much fuller and more satisfactory presentation. We dismiss this assignment as we did the others.

The particular matters which require reversal are called to our attention in the .two remaining specifications, and we will rule the case upon those assignments. Under the thirteenth specification the appellant assigns for error that part of the charge in which the trial judge said: “Now, in passing upon the question, .... as to whether or not Staley’s character or care was known or should have been, known to his employer, you consider the evidence. of his reputation and the evidence of the information given-to the different persons in the employ of the defendant company.” Immediately before this the judge had referred to the fact that statements concerning the character of Staley had been made to the “dispatchers” of the defendant company. The admission of this testimony is assigned for error under the fourteenth specification. It consisted of the narration of a statement concerning Staley, made by the witness to the dispatcher named Fitch, as follows: “We got off the tracks out past Castle Shannon there, and of course it was our place to make a report about it, and I says to Fitch, ‘that man runs like a crazy horse.’ . There was a sign up there ‘run slow,’ crossing a new bridge down there between Arlington and Castle Shannon; and we went off the track there.” This is dangerously near evidence of a special or particular act of negligence, and, as such, in conflict with Frazier v. R. R. Co., 38 Pa. 104.

Although the trial judge immediately explained to the jury that the testimony in question was not accepted as evidence of negligence, but merely to 'fix the time of a conversation, the trouble is that it was not proper evidence for any legitimate purpose. Moreover, its admission and subsequent submission to the jury, as evidence from which the fact of notice might be found, was directly contrary to our rule in Reiser v. Penna. Co., 152 Pa. 38. There the negligence complained of was the employment of an incompetent telegraph operator, and, in affirming a judgment for the defendant, we said: “Did the Company have notice while Crossman was in its service that he was incompetent? We think not, unless notice to Pardue was notice to the Company.” Pardue was the defendant’s company’s “chief train dispatcher,” and we held that, in the absence of testimony showing that he had the power to employ and discharge its servants, notice to him was not notice to the defendant company. The only other case which we find touching upon this subject is Huntingdon, etc., R. R. Co. v. Decker, 82 Pa. 139, where the plaintiff proved complaints made to a train master. In disposing of the question of the admissibility of this testimony, we said that “Under the whole evidence we discover no substantial error.” But there the report shows that the complaints to the train master had been transmitted by him to the general superintendent who had power to employ and discharge. In the present case there was no testimony that the dispatcher had the authority to employ or discharge, or that he transmitted the complaint to one who had such power. We cannot say that the admission of the testimony was harmless error; for it is only reasonable to assume that the evidence concerning the complaint to the dispatcher must have had substantial weight in affecting the determination of the questions at issue. Not only may it have been the deciding element in determining the substantive issue of incompetency, but Mr. Fitch, to whom the complaint was made, was the sole witness produced by the defense and his testimony was relied upon to overcome the plaintiff’s testimony as to the motorman’s bad reputation. After testifying to facts showing long observation of Staley, he was allowed to express the opinion that “Staley was a good, competent motorman:” (see Gahagan v. Boston & Lowell R. R. Co., 83 Mass. 187.) As Mr. Fitch was obliged to meet the plaintiff’s story concerning the complaint made to him, and to submit to cross-examination on that point, it well may be that his value as a witness was utterly destroyed by this irrelevant testimony which was admitted against the objection of the defendant, and not withdrawn from the jury.

In a line of cases commencing with Delaware & Hudson Canal Co. v. Barnes, 31 Pa. 193, followed by Hunt-ingdon, etc., R. R. Co. v. Decker, 82 Pa. 119; Erie etc., R. R. Co. v. Smith, 125 Pa. 259; Rathgebe v. Penna. R. R. Co., 179 Pa. 31; Hamory v. Penna., etc., R. R. Co., 222 Pa. 631, and Willock v. Beaver Valley R. R. Co., decided to-day, we have held that “where evidence has been improperly received which tends to prejudice the minds of the jurors, the error is not cured by an instruction to disregard it;” and we have said, “It may be withdrawn by the party who has given it, or the Court may withdraw it and positively instruct the jury to disregard it — to discard it from their view. In such a case, it is the duty of the Court to see to it that no mischief is done; that the illegal evidence be withdrawn, wholly withdrawn, and withdrawn for every purpose:” Delaware & Hudson Canal Co. v. Barnes, 31 Pa. 193. We have further said that it must be stricken from the record before counsel make their addresses to the jury. Here) not only was there a failure to withdraw the objectionable testimony, but it was submitted to the jury, and they were told to consider it in determining the issues. We are constrained to hold that this constituted error for which we must reverse.

The thirteenth and fourteenth assignments are sustained, and the judgment of the court below is reversed with a. venire facias de novo.


text:
    Point Bridge Company v. Pittsburg & West End Railway Company, Appellant.

      Bridges — Equity — Equity practice — Decree—Street railways — Compensation — Action at law — Cities—Ownership of bridges.

    1. Where a disagreement arises concerning the compensation to be paid a bridge company for the future occupancy of a bridge by a street railway company which had changed its motive power to electricity, after having, for a number of years, operated a line of horse cars across the bridge, a bill in equity, filed by the railway company asking that the bridge company be restrained from interfering with the operation of its cars and praying the court to fix the compensation to be paid, is an appropriate proceeding and equity has power to enter a decree therein fixing the compensation at a stated sum for a term of years thereafter with a provision for modification of the decree for proper cause on application of either party.
    2. Where in such case the city in which the bridge is located acquires control of the stock of the bridge company and opens the bridge to the general public and, thereupon the railway company declines to make further payments, the bridge company is entitled to maintain an action at law against the railway to recover the amount due under the terms fixed in the decree.

      Bridges — Purchase of stock by cities — Compensation for use — Street railways.

    3. The purchase of the entire stock of a bridge company by the city in which the bridge is located does not dissolve the corporation or vest in the city the title to the property of the bridge company or prevent the bridge company from collecting compensation for the use of the bridge from a trolley company under arrangements theretofore existing, although the bridge is made free to other travel.
    Argued Oct. 31, 1910.
    Appeal, No. 163, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1898, No. 318, on verdict for plaintiff in case of the Point Bridge Company v. The Pittsburg & West End Railway Company.
    Before Brown, Mestre-zat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit for use of a bridge. Before Ford, J.

      The opinion of the Supreme Court states the case.
    Verdict for plaintiff for $20,706, and judgment thereon. Defendant appealed.

      Error assigned was refusal to enter judgment for defendant non obstante veredicto.

      Edwin W. Smith, of Reed, Smith, Shaw & Beal, for appellant.
    The bridge is a highway: Pittsburg & West End Ry. Co. v. Point Bridge Co.,-223 Pa. 133; Pittsburg & West End Ry. Co. v. Bridge Co., 165 Pa. 37; Berks County v. Reading, etc., Co., 167 Pa. 102.
    The charge against the railway company is not reasonable nor was it correctly determined, granting that the city had a right to charge: Berks Co. v. Reading, etc., Cos., 167 Pa. 102; Beaver Co. v. Telegraph Co., 219 Pa, 340; Pittsburg & West End Ry. Co. v. Bridge Co., 223 Pa. 133.
    There is no right to discriminate: Munn v. People of Illinois, 94 U. S. 113; McDuffee v. R. R. Co., 52 N. H. 430; Messenger v. Penna. R. R. Co., 36 N. J. Law, 407; Hays v. Penna. Co., 12 Fed. Repr. 309; Baily v. Fayette Gas & Fuel Co,, 193 Pa. 175; Geiger v. Turnpike. Road Co., 167 Pa. 582.
    A court of equity cannot fix a reasonable rate: Smyth v. Ames, 169 U. S. 466 (18 Sup. Ct. Repr. 418); San Diego Land Co. v. National City, 174 U. S. 739 (19 Sup. Ct. Repr. 804); Stanislaus County v. San Joaquin Canal & Irrigation Co., 192 U. S. 201 (24 Sup. Ct. Repr. 241); Com. v. Sycamore Street Ry. Co., 47 Pitts. Leg. J..333.

      Charles K. Robinson, with him Charles A. O’Brien, for appellee.
    A final decree of a court of equity is as conclusive as a judgment at law: Hohman’s App., 127 Pa. 209.
    The liability of the defendant is res adjudicata: Raisig v. Graf, 17 Pa. Superior Ct. 509; Kay v. Gray, 30 Pa. Superior Ct. 450; Shortlidge’s Est., 214 Pa. 620.
    The bridge company is an existing, corporation: Traction Co. v. Monongahela Bridge Co., 184 Pa. 180; Bridge Co. v. Pitts. & Birmingham Trac. Co., 196 Pa. 25.
    January 3, 1911:
    The bridge company may permit the public to go free and charge the railway a reasonable compensation: Has-son v. Venango Bridge Co., 11 Pa. C. C. Rep. 383; Central Bridge Corporation v. Bailey, 62 Mass. 319.
    A court of equity has jurisdiction in a proper case to decree compensation: Pittsburg & West End Ry. Co. v. Bridge Co., 165 Pa. 37; Berks County v. Reading City Ry. Co., 167 Pa. 102; Lawrence County v. Ry. Co., 8 Pa. Superior Ct. 313; Kaufman v. Liggett, 209 Pa. 87.
   Opinion by

Mr. Justice Moschzisker,

For a number of years the defendant railway company had operated a line of horse cars across a bridge belonging to the plaintiff bridge company. In 1892 the motive power was changed to electricity and a disagreement arose concerning the compensation to be paid for the future occupancy of the bridge. The railway company filed a bill asking that the bridge company be restrained from interfering with the operation of its cars, and praying the court to fix the compensation to be paid for the use of the bridge. On November 12, 1892, a decree was entered which fixed the compensation at $8,000 per annum for the next five years, and expressly provided, “either party hereto at any time may, during the continuance of this order make application to the court, and for proper cause may move a modification of this decree or such other and further order in this case as may, under the circumstances then existing, be proper.” This decree was affirmed in Pittsburg & West End Passenger Ry. Co. v. Point Bridge Co., 165 Pa. 37; and the defendant company paid the compensation stipulated therein until June 1, 1896. At that time the city acquired control of the stock of the bridge company and freed the bridge to the general public; whereupon the railway company declined to make further payments. On January 20, 1898, this suit was brought and a recovery was allowed covering the period from June 1, 1896 to November 12, 1897', the limit named in the decree.

The defendant now contends that a court of equity had no jurisdiction to enter the decree sued upon. It is too late to raise that question. We said in Pittsburg & West End Ry. Co. v. Point Bridge Co., 165 Pa. 37: “We have not overlooked the contention which denies to a court of Equity, jurisdiction of the matter complained of, but we cannot assent to it. On the contrary we think that the Railway Company applied to the proper tribunal for the relief sought.”

The appellant also questions the appropriateness of the present action at law. When these parties were before this court in Pittsburg & West End Ry. Co. v. Point Bridge Co., 223 Pa. 133, we said: “In 1898, upon the correct theory that the decree of 1892 was but a substitute for an agreement between the parties . . . ., an action, which is still pending, was brought by the appellee on the law side of the Court-to recover the amount due from June 1, 1896 to November 12, 1897. That action is an adequate remedy for the recovery of any sum that may be due for the use of the bridge during the five year period.” This was said in reference to the present action, and we see no reason to depart from that view.

It is further contended- that the plaintiff has no right to maintain this action because the city of Pittsburg has acquired all of the stock of the bridge company and has taken over the actual maintenance and control of the structure as a free bridge. This is not the first time that such a point has been before us for consideration. In Monongahela Bridge Co. v. Pittsburg & Birmingham Traction Co., 196 Pa. 25, the action was to recover compensation for the use of a bridge. The defense was that the stock of the bridge company had been purchased by the city of Pittsburg and that it had thereby acquired the “possession, ownership and' control of said .... bridge, and that the same was purchased at public expense for public use, for a free bridge, and 1 . . . the said bridge has been maintained by the City at public expense as a free bridge, and no toll has been asked or demanded for its use . . . ., but the same is maintained by general taxation.” We ruled this defense to be insufficient and said that the purchase of the stock of the bridge company did not dissolve that corporation or vest the ownership of the bridge structure in the city. In Com. v. Monongahela Bridge Co., 216 Pa. 108, the action was a quo warranto by the commonwealth and the judgment of the court below refusing to declare a forfeiture of the charter of the bridge company was affirmed. We there said: “The relations existing between the Traction Company and the Bridge Company have already, in part at least, been considered twice by this court. The case of Pittsburg & Birmingham Traction Co. v. Monongahela Bridge Co., 184 Pa. 180, was an action to recover money advanced by the Traction Company for reconstructing the bridge. Under the contract this was to be paid by crediting the tolls chargeable against the Company, but the latter claimed that since the City had purchased all of the stock of the Bridge Company and had made the bridge free to the public, the company must be held to have surrendered its franchises and to be no longer in existence, and therefore it could collect no further tolls under the contract. The court below held that the contract remained in force and that no recovery could be had by the Traction Company of the money it had advanced, and on appeal the judgment for the defendant was affirmed. . . . Then in Monongahela Bridge Co. v. Traction Co., 196 Pa. 25, the present defendant sued the same Traction Company to recover tolls alleged to be due. The defense was attempted to be set up, that the Bridge Company had forfeited its franchise by the sale of its stock to the City. Judgment was given for the plaintiff and afterwards affirmed by this Court. While the case was decided upon other grounds, it was pointed out .... that the purchase of the entire stock of the Bridge Company by the City did not dissolve the corporation or vest in the City the title to the property of the Bridge Company.”

The present case is not to be distinguished from those just reviewed. Although in this case the ordinance authorizing the purchase of the stock of the bridge company. refers to “acquiring the bridge,” yet it expressly authorizes the city to acquire it “by the purchase of the entire stock of the said Point Bridge Company,” and it must be assumed that the legal effect of such a purchase was known to and intended by the city. The provision that “The contract now existing between the said Bridge Company and the. . . . Passenger Railway Company .... shall be duly and legally assigned by the said Bridge Company to the said City . . . ., so that the same shall continue in full force and effect . . . .” was incapable of being carried out for the reason that no such contract existed.' Its only effect was to show that the city had no intention of making the bridge free to the railway company. In view of our decisions there can be no doubt of the right of the plaintiff to maintain this action.

Here the plaintiff sued on the solemn decree of a court of competent jurisdiction which fixed the compensation to be paid by the defendant. No application having been made to modify that decree, the question of how the rate of compensation is to be determined is not in this case. That point as well as the question of the authority to charge a street railway company for the use of a public bridge which is free to others is passed upon in an opinion filed to-day in the case of Beaver County v. Beaver Valley Traction Co., 229 Pa. 565.

We are not impressed with the argument that since the bridge was free to others the charge against the defendant was an unlawful discrimination. The defendant’s use was of a different character from that of the general public, and as it was the only railway company that crossed the structure it cannot be charged that there was any discrimination within a class of users.

After a careful consideration of the whole record we see no reversible error.

The assignments are all overruled and the judgment is affirmed.


author: Mr. Justice Brown,

text:
    Danko, Appellant, v. Pittsburg Railways Company.

      Negligence — Streét railroads — Evidence—Signed statement — Discrepancies — Credibility of witness.

    1. Where in an action to recover damages for personal injuries the testimony in chief of the only witness called by plaintiff to describe the accident makes out a clear case for the jury, but on cross-examination he is confronted with a statement which he signed two days after the accident, at the instance of an employee of the defendant company, and radically inconsistent with his testimony in chief, of which statement he says “If my signature is there, it must be correct” but which he testifies without contradiction he signed without reading or knowing its contents, the credibility of the witness is for the jury, not the court, and if a verdict has been found for plaintiff it is error for the court to enter judgment for defendant non obstante veredicto.
    2. In such a case, the duty of the court is limited to calling the jury’s attention to the discrepancy between the written statement and the testimony of the witness in chief, and to properly cautioning them as to their duty in passing on his credibility.
    3. When on part of the testimony of a witness a plaintiff is plainly entitled to go to a jury, while on the other part of it he plainly is not, or when the different parts of the testimony of a witness are apparently inconsistent, leaving it uncertain just what his recollection of the facts respecting which he testifies is, it is the province of the jury to reconcile the conflicting statements, whether of the same or different witnesses, or to draw the line between them and say which shall prevail.
    Argued Oct. 31, 1910.
    Appeals, Nos. 66 and 67, Oct. T., 1909, by plaintiffs, from judgment of C. P. No. 4, Allegheny Co., Third T., 1907, No. 277, for defendant n. o. v. in ease of Chester Danko, a minor, by his father and next friend John Danko, and John Danko v. Pittsburg Railways Company.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.

      January 3, 1911:
    Trespass for personal injuries. Before Swearingen, P. J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      Rody P. Marshall, with him A. H. Mercer, for appellants.
    The weight of the testimony of the witness McLaughlin was for the jury: Ely v. Railway Co., 158 Pa. 233; Kohler v. Penna. R. R. Co., 135 Pa. 346; Platz v. McKean Twp., 178 Pa. 601; Lautner v. Kann, 184 Pa. 334; Alexander v. Buckwalter, 17 Pa. Superior Ct. 128.

      William A. Challener and David A. Reed, with them Clarence Burleigh, for appellee.
   Opinion by

Mr. Justice Brown,

At the time Chester Danko was injured he was but four years of age, and the question of his contributory negligence is, therefore, not in the case. But a single witness — J. C. McLaughlin — was called by the plaintiffs to describe the accident, and from' his testimony in chief the negligence of the defendant company was clearly for the jury. He testified that when one of its summer cars had reached the end of a line in the borough of Du-quesne, the injured plaintiff and another boy, somewhat older, got upon it; that the older boy turned the seats and just before the car started the younger one attempted to get off; that while he was hanging on the running board and trying to get off the motorman rang the gong and the conductor gave the signal to start; that when the car started it gave a lunge and the little fellow fell off, the rear wheel of the car passing over and crushing one of his feet; that when the conductor gave the signal to the motorman to start he was on the rear platform making out a report; that he did not glance at the running board, where he would have seen the boy about six feet from him if he had looked. On his cross-examination McLaughlin was confronted with a statement which he had signed two days after the accident, at the instance of an employee of the company, and in this he stated that the boy had hopped on two or three cars before he was hurt; that as he grabbed the running board of the car his feet went under the wheels and that it was his own fault. The question of the defendant’s negligence was submitted to the jury on McLaughlin’s testimony and a verdict returned in favor of the plaintiffs, but judgments on it were denied them and judgment was entered for the defendant non obstante veredicto, because the court below was of opinion that the burden upon the plaintiffs to establish the defendant’s negligence had not been discharged, in view of the discrepant testimony of the only witness called to prove it.

What appears in the written statement to which the employee of the company procured McLaughlin’s signature is radically inconsistent with his testimony in chief on the trial, but it is first to be noted that the statement was written by the employee, and when the witness signed it he did not read it, nor was it read to him. In this he is uncontradicted, for the employee was not called as a witness. It is true that when McLaughlin was pressed on cross-examination to say whether what appeared in the statement was a truthful account of the accident, he answered that it was, but this answer must be received in connection with the answers which immediately preceded it in determining whether in view of it the case should not have gone to the jury. When the witness was first asked whether the statement to which he had appended his signature was correct his answer was, “If my signature is there, it must be correct.” This, however, must be taken in connection with his uncon-tradicted statement that he had not read the paper and it had not been read to him, and when his answers are so considered, a fair inference to be drawn from them is that all he intended by them was that he had no recollection of what was inserted in the statement, but', as he had signed it, "It must be true.” This by no means followed, if he had not read the statement and the employee procured his signature to it without reading it to him, for immediately after the answers that the statement must be true if his signature was to it, he testified unqualifiedly on his re-examination in chief that the statement of the accident as he gave it to the jury was correct according to the best of his knowledge, and that what he told them as a witness on the trial was the truth. Under the circumstances his credibility was for them and not for the court. The duty of the latter was limited to Calling their attention to the discrepancy between the written statement which had been procured from the witness and his testimony in chief and to properly cautioning them as to their duty in passing upon his credibility, which was for them alone. While it would have been no abuse of judicial discretion on the part of the court below, if it had been so asked, to have set the verdict aside, if regarded as perverse in view of McLaughlin’s testimony, and to have compelled the plaintiffs to satisfy a second jury that his testimony as a witness for them was true, it by no means follows that the court could have taken from the jury in the first instance the determination of the question of fact depending upon his credibility: Dinan v. Supreme Council of the Catholic Mutual Benefit Assn., 210 Pa. 456; and a judgment non obstante veredicto may be entered only in cases where binding directions to the jury would have been proper at the trial: Dalmas v. Kemble, 215 Pa. 410; Bond v. Penna. It. R. Co., 218 Pa. 34; Shannon v. McHenry, 219 Pa. 267; Hardoncourt v. North Penn Iron Co., 225 Pa. 379. When on part of the testimony of a witness a plaintiff is plainly entitled to go to a jury, while on the other part of it he plainly is not, or when the different parts of the testimony of a witness are apparently inconsistent, leaving it uncertain just what his recollection of the facts respecting which he testifies is, it is the province of the jury to reconcile the conflicting statements, whether of the same or different witnesses, or to draw the line between them and say which shall prevail: Kohler v. Penna. R. R. Co., 135 Pa. 346; Ely v. Ry. Co., 158 Pa. 233; and if a witness at a former trial, or elsewhere, has made statements contradictory of his testimony at a second trial, such statements affect his credibility, but do not authorize an instruction to the jury not to believe him: Platz v. McKean Township et al., 178 Pa. 601. Under the rule recognized and applied in the foregoing and other cases, this case was for the jury. The judgment of the court below is reversed and the record remitted, with direction that judgments be entered for the plaintiffs upon the verdict.'


author: Mr. Justice Mestrezat,

text:
    Dugan v. Arthurs, Appellant.

      Negligence — Automobiles — Pedestrians — Collisions — Witnesses — Competency — Opinion as to speed — Necessity.
    1. In an action for damages for personal injuries sustained by a pedestrian in a collision, with an automobile, nonexpert, witnesses are competent to express an opinion as to the rate of speed of the automobile, their everyday experience giving them sufficient knowledge to form an intelligent judgment on the subject.

      Evidence — Withdrawal of evidence — Trial—Practice, C. P.

    2. Where evidence is properly admitted, and subsequently on motion of the party who offered it, the evidence is stricken out, such action of the court cannot be alleged as error by the opposite party on appeal.
    Argued Oct. 31, 1910.
    Appeal, No. 97, Oct. T., 1910, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1906, No. 371, on verdict for plaintiff in case of Elizabeth Dugan v. Addison E. Arthurs. Before
    Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Action to recover damages for personal injuries. Before Davis, J.

      The circumstances of the accident are stated in the opinion of the Supreme Court.
    At the trial Joseph Lauer, a witness for plaintiff, was asked this question: “Q. How fast was that automobile traveling, in your judgment, when it passed you going up Highland avenue immediately before this accident happened?”
    Mr. Dalzell: Objected to as incompetent. Objection overruled. To which ruling counsel for defendant requests an exception. Exception allowed and bill sealed. [1]
    “A. I would judge that it was running forty or fifty miles when it passed me.”
    Geo. W. McCausland, a witness for plaintiff was asked this question: “Q. Could you say, or do you know, how fast that automobile was traveling at the time your attention was attracted to it? ”
    Counsel for defendant objects on the ground of the incompetency of the witness at the present state of the proof to answer this question. Objection overruled. To which ruling counsel-for defendant requests an exception. Exception allowed and bill sealed. [2]
    “A. I would say it was traveling about fifty miles an hour, from what I have seen.”
    Mr. Drew: If the court please, I want to make a motion to strike out a question and answer of two of my witnesses as to the rate of miles per hour this machine was going at the time it went up Highland avenue. I have looked that question up over night, and while I have not been able to find the case that Mr. Dalzell spoke of, and do not think the case exists, nevertheless there is some doubt, and the point has not been decided as to whether an ordinary witness can testify in that way; and, rather than have any doubt in the record, I would rather have it struck out, and the jury instructed to disregard that testimony.
    Mr. Dalzell: This motion is objected to. You cannot have testimony go to the jury and then afterwards attempt to withdraw it. I objected to it, and both the court and you were very doubtful about the existence of such a case. The nearest case that I could find to it last night is in volume 222.
    The Court: We will allow this motion.
    Mr. Dalzell: Will your honor grant me an exception?
    The Court: We will give you an exception.
    Bill of exceptions sealed for the defendant. [3]
    Mr. Drew: That is just as to the answers of the witnesses McCausland and Joseph Lauer, as to the number of miles per hour that this automobile was traveling when their attention was attracted to it; their testimony in every other respect to stand as unaffected by this motion.
    Verdict and judgment for plaintiff for $5,300. Defendant appealed.

      Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions.

      R. H. Hawkins, of Dalzell, Fisher & Hawkins, for appellant, cited: Smith v. Electric Ry. Co., 187 Pa. 451; Knox v. Phila. & R. Ry. Co., 202 Pa. 504; Bracken v. Penna. R. R. Co., 222 Pa. 410.

      James B. Drew, with him John F. Gloeckner, for ap-pellee.
    The opinions of ordinary witnesses derived from observation are admissible in evidence when from the nature of the subject under investigation no better evidence can be obtained, for the facts cannot otherwise, be presented to the tribunal, e. g., questions relating to time, quantity, number, dimensions, height, speed, distance or the like: Shaffer v. Coleman, 35 Pa. Superior Ct. 386; Porter v. Buckley, 147 Fed. Repr. 140; Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 Mich. 99; Alabama, etc., R. R. Co. v. Hall, 105 Ala. 599 (17 So. Repr. 176); Salter v. Utica R. R. Co., 59 N. Y. 631; Chicago, Burlington & Quincy R. R. Co. v. Johnson, 103 Ill. 512; Walsh v. Mo. Pac. Ry. Co., 102 Mo. 582 (15 S. W. Repr. 757); Hoppe v. Chicago Ry. Co., 61 Wis. 357 (21 N. W. Repr. 227).

      January 3, 1911:
   Opinion by

Mr. Justice Mestrezat,

This is an action of trespass brought by the plaintiff to recover damages for personal injuries which she sustained by a collision with the defendant’s automobile. The defendant was the owner of the machine and, it is alleged, was operating it himself at a dangerous and reckless rate of speed at the time of the accident. He was driving on North Highland avenue in the city of Pitts-burg, and in passing a street car standing at the intersection of the avenue with Hoevler street, the machine struck and severely injured the plaintiff while she was attempting to cross the avenue.

On the trial of the cause two witnesses were called by the plaintiff and, after testifying that the automobile was running at a high rate of speed at the time of the accident, were asked to give the rate of speed at which the machine was traveling. The question was objected to by the defendant, the objection was overruled and the witnesses were permitted to answer. This ruling of the court is the subject of the first and second assignments of error. Subsequently, and before the plaintiff closed, she moved to strike out the testimony of the two witnesses and the motion was allowed. The defendant excepted, and this ruling is the subject of the other and third assignment of error.

We think both witnesses were competent, and that their testimony was properly admitted by the court. They were not offered as experts but as ordinary witnesses without having any special or peculiar knowledge which would especially fit them to testify to the speed of the machine. Their competency to express an opinion did not require them to possess technical or scientific knowledge. An intelligent person having a knowledge of time and distance is capable of forming an opinion as to the speed of a passing railroad train, a street car or an automobile. His conclusion is the result of a comparison with the speed of other moving objects of which he has knowledge by constant experience. There is no more reason why such a witness should not be permitted to testify to the speed of an automobile than to the speed of a carriage or other vehicle which travels the public highways. His everyday experience gives him sufficient knowledge to form an intelligent judgment upon the subject. He simply compares the speed of one moving object with that of another with which he is made familiar by the daily affairs of life.

Aside from any other sufficient reason, the necessity of the case requires that such testimony be admitted in trials involving the wanton and dangerous speeding of automobiles. To hold otherwise and to compel the production of expert testimony in such cases would in almost every instance defeat the ends of justice. An expert witness or exact measurement by a speedometer is seldom available to a party who has been injured by the reckless conduct of a person operating such a machine, and to require such evidence in order to sustain an action would be unreasonable and work palpable injustice. Absolute accuracy is not required in such cases to make a witness competent to testify to the speed of the machine. As said by Porter, J., in People v. Gonzalez, 35 N. Y. 49, 62: “The affairs of life are too pressing and manifold to have everything reduced to absolute certainty, even in the administration of justice. Microscopes, chemists and men of science are not always at hand.” The experience of nonexpert witnesses will enable them to form a reasonably accurate judgment as to the speed of a passing machine, and nothing beyond that is expected or should be required. Of course, the value and the weight to be given such testimony by the jury will, as in similar cases, depend upon the attention the witness has given the subject and the opportunities for observation which he may have had. His inexperience in such matters, however, goes to the weight and not to the admissibility of his testimony. The witness is competent to express an opinion as to the speed of the machine; it is for the jury to determine what weight they will give his testimony.

The authorities on the subject seem to be in accord with the views expressed above. We have been referred to no case, and after diligent search we have not been able to find one which holds such testimony to be incompetent. Our own cases, cited by the appellant, do not sustain the position. Those cases turned upon the effect of the testimony and not upon its admissibility. In other jurisdictions, the ruling has been in harmony with our conclusion. Judge Thompson in his work on Negligence (vol. 6, sec. 7754) says: “The speed of trains is not ordinarily regarded by courts as a matter for scientific testimony, and any intelligent person, accustomed to observing moving objects, is competent to testify as to this matter, although the weight to be given to such an opinion will depend upon the opportunity the witness may have had to form a correct estimate.”

In Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 Mich. 99, four witnesses were permitted to testify to the rate of speed the engine was running at the time the accident occurred. The witnesses were on the ground near the place of the accident and saw the train passing. While two of them had been accustomed to railroad traveling, the other two were not shown to have had any special opportunity to judge the speed of trains beyond that possessed by people generally. In holding the witnesses competent Chief Justice Cooley said: “The motion of the train was to be compared to the motion of any other thing, with a view to obtaining the judgment of the witness as to its velocity. No question of science was involved, beyond what would have been had the passing object been a man or a horse. It was not, therefore, a question for experts. Any intelligent man who has been accustomed to observe moving objects, would be able to express an opinion of some value upon it, the first timé he ever saw a train in motion. The opinion might not be so accurate and reliable as that of one who had been accustomed to observe, with timepiece in hand, the motion of an object of such size and momentum; but this would only go to the weight of the testimony, and not to its admissibility. Any man possessing a knowledge of time and of distances would be competent to express an opinion upon the subject.” This case is followed and the doctrine is announced in numerous cases among which are Alabama R. R. Co. v. Hall, 105 Ala. 599; Salter v. Utica R. R. Co., 59 N. Y. 631; Chicago, Burlington & Quincy R. R. Co. v. Johnson, 103 Ill. 512; Walsh v. Missouri Pacific Ry. Co., 102 Mo. 582; McVey v. Chesapeake & Ohio Ry. Co., 46 W. Va. 111; Robinson v. Louisville Ry. Co., 112 Fed. Repr. 484; Porter v. Buckley, 147 Fed. Repr. 140; and the very recent case of Atchison, Topeka & Santa Fe Ry. Co. v. Holloway, 71 Kan. 1 (114 Am. St. Rep. 462). Porter v. Buckley, involved the speed of an automobile and Robinson v. Railway Co., was a street car case, both decided by the United States circuit court of appeals.

Being of opinion that the testimony, the admission of which is alleged to be erroneous, was properly admitted, the subsequent action of the court in striking it out on motion of plaintiff’s counsel becomes immaterial. The plaintiff, not the defendant, was injured by the ruling and, hence, the latter has no cause to complain. The third assignment, therefore, need not be considered.

The judgment is affirmed.