Huntingdon, &C., Railroad Co. v. Decker

• Decision Date: 09 October 1876
• Citation: 82 Pa. 119
• Parties: Huntingdon and Broad Top Mountain Railroad and Coal Company <I>versus</I> Decker.
• Court: Pennsylvania Supreme Court

Page 119

82 Pa. 119

Huntingdon and Broad Top Mountain Railroad and Coal Company versus Decker.

Supreme Court of Pennsylvania.

May 16, 1876.

October 9, 1876.

May 16th 1876.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, and WOODWARD, JJ. WILLIAMS, J., absent

Error to the Common Pleas of Huntingdon county: Of May Term 1876, No. 1.

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S. L. Brown (with him J. M. Bailey and J. E. Gowen), for the plaintiff in error.—The evidence as to McKillips's competency was discussed at length to the jury. It was then too late to withdraw it: Penna. Railroad Co. v. Butler, 7 P. F. Smith 335; Del. & Hud. Canal Co. v. Barnes, 7 Casey 193. There is no rule of law that an employer is bound to employ none but skilful servants: Ryan v. Cumberland Valley Railroad Co., 11 Harris 384; Weger v. Penna. Railroad Co., 5 P. F. Smith 460; Caldwell v. Brown, 3 Id. 456.

R. M. Speer (E. S. McMurtrie with him), for defendant in error. —As to the first assignment, the objection made admits the facts, but urges that the plaintiff below was bound to call McKillips to prove them. If the suit had been against McKillips, his admissions would have been evidence against him; but he was the company its knowledge could only be shown by showing his knowledge. His knowledge was one of the issues of the case: Frazier v. Penna. Railroad Co., 2 Wright 111. If the objection is sound, proof of his knowledge would have become impossible, had he died before the trial: Laning v. New York Central Railroad Co., 49 N. Y. 45, is directly in point. The evidence as to McKillips, having been withdrawn, could not have injured the defendant; for it touched the right to recover and not the question of damages. It did not tend to inflame the damages as in Penna. Railroad Co. v. Butler, supra. In Del. & Hud. Canal Co. v. Barnes, supra, the evidence was not withdrawn.

Mr. Justice MERCUR delivered the opinion of the court, October 9th 1876.

The first assignment of error is to the admission of the declarations of the superintendent of the company, made on the day after the accident.

It is a well-established rule that the declarations of an agent, made at the time of the particular transaction which is the subject of inquiry, and while acting within the scope of his authority, may be given in evidence against his principal, as a part of the res gestæ. It is equally as well settled that the declarations of an agent, made after the transaction is fully completed and ended, are not admissible: Magill v. Kauffman, 4 S. & R. 320; Hough v. Doyle, 4 Rawle 291; Clark v. Baker, 2 Whart. 340; Bank of Northern Liberties v. Davis, 6 W. & S. 285; Pennsylvania Railroad Co. v. Books, 7 P. F. Smith 339. The declarations of officers of a corporation rest upon the same principles as apply to other agents. Idem.

A question was raised whether the declarations testified to by John Chappel were not made on the day of the accident and immediately thereafter. A reference to his testimony clearly shows them to have been made on the next day. After he had testified to a conversation he had had with the superintendent on the day or evening of the accident, and before the evidence covered by this assignment was offered, the question was put to him, "Did he say anything about Bowser having disobeyed orders?" To this the witness answered, "He did not say that until the next day." Again, after the court decided the evidence admissible, the first question put to him was, "You stated you had a conversation with McKillips the day after the accident about Bowser?" To this the witness answered, "Yes," and proceeded to narrate it. The objection is not to proving the fact of the superintendent's knowledge of Bowser's improper conduct and habits, but to the mode of proof. The evidence ought not to have been received.

We see no error in admitting the evidence covered by the second and fourth assignments. It was clearly competent to prove Bowser'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 to discharge conductors and hands.

Where a railroad company employs a conductor who is unfit for the business and knows his unfitness, it is chargeable with the consequences of the conductor's negligence, even to one employed in the same general service. Knowledge of the superintendent, possessing the general powers stated, is knowledge to the company: Frazier v. Pennsylvania Railroad Co., 2 Wright 104; Caldwell et ux. v. Brown et al., 3 P. F. Smith 453; O'Donnell v. Allegheny Valley Railroad Co., 9 Id. 239; Ardesco...