American Steamship Co. of Philadelphia v. Landreth

• Decision Date: 01 October 1883
• Citation: 102 Pa. 131
• Parties: American Steamship Company of Philadelphia <I>versus</I> Landreth.
• Court: Pennsylvania Supreme Court

Page 131

102 Pa. 131

American Steamship Company of Philadelphia versus Landreth.

Supreme Court of Pennsylvania.

January 15, 1883.

October 1, 1883.

January 15th 1883.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ. CLARK, J., absent

ERROR to the Court of Common Pleas No. 4, of Philadelphia county: Of July Term 1882, No. 75.

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H. G. Ward and M. P. Henry, for plaintiff in error.—The testimony setting forth the declarations of Captain Harris was inadmissible, because —

(a) They were not part of the res gestæ: Rockwell v. Taylor, 41 Conn. 59; Luby v. Hudson Railroad Co., 17 N. Y. 131; Railroad v. Books, 57 Pa. St. 339; Shelhamer v. Thomas, 7 S. & R. 106; Levering v. Rittenhouse, 4 Wharton 130; Jordan v. Stewart, 11 Harris 244; Hough v. Doyle, 4 Rawle 291; Clark v. Baker, 2 Wharton 340; Patton v. Minesinger, 1 Casey 393.

(b) They were not within the scope of the captain's employment so as to bind his employer: Railroad v. Ashcraft, 48 Ala. 15; Randall v. Telegraph Co., 54 Wis. 140; Milwau. & Miss. Railroad Co. v. Finney, 10 Wis. 388; Betts v. Farmer's L. and T. Co., 21 Wis. 80; Richards v. Noyes, 44 Wis. 609; Rounsavell v. Pease, 45 Wis., 506; Austin v. Austin, Id. 523; Livesly v. Lasalette, 28 Wis. 38; Hazleton v. Union Bank, 32 Wis. 34; Packet Co. v. Clough, 20 Wall. 540; 2 Wharton on Evidence §§ 1090, 117-46; 2 Thompson on Negligence 848, note 7.

(c) They were mere expressions of opinion: Winters v. R. Co., 39 Mo. 468; Crane v. Northfield, 33 Vt. 124; Teall v. Barton, 40 Barb. 137; Patterson v. Colebrook, 29 N. H. 94; Nowell v. Wright, 3 Allen 166. If the instruction of the court, cited in the third assignment of error, were law, every ocean steamer would have to be retired when a new one is built. There was no evidence of actual negligence upon appellants' part, but simply an indication of a possible precaution which might have been taken. We were not charged with having a defective rail, but for not having any. Now there is no measure by which such improvements can be judged of by a jury. A mere surmise that there might have been negligence is not enough to be submitted to a jury: Phila. & Reading R. Co. v. Yeager, 23 P. F. S. 121; Baker v. Fehr, 1 Out. 70; Phila. & Reading R. Co. v. Schertle, 1 Out. 450. The appellants were entitled to the binding charge prayed for in the fifth point: G'town Pass. Railroad Co. v. Walling, 1 Out. 55; Catawissa R. Co. v. Armstrong, 2 P. F. S. 282; Del. Lack. & West. R. Co. v. Napheys, 9 Nor. 135.

John G. Johnson, for defendant in error.—The declarations of the captain were admissible. They were made at the very time of the accident, concerning the then condition of the ship, by the person who had sole and exclusive control thereof, and was charged with the duty, and clothed with the power, of doing whatever was necessary to guard the passengers from injury: Harrisburg Bank v. Tyler, 3 W. & S. 373; Parker v. S. B. Co., 109 Mass. 449. While there may be no agency in an official to make admissions as to past events, as in the case of Packet v. Clough, and others cited by plaintiff in error, there is an agency to do whatever is within the line of his duty, and statements made while performing this, are part of the res gestæ: Brewery Co. v. Railway Co., L. R. 9 Q. B. 468; Morse v. R. R. Co., 6 Gray 450; Patton v. Minesinger, 1 Cas. 393; Hanover R. Co. v. Coyle, 5 P. F. S. 396. On this principle the cases cited by the plaintiff in error are distinguishable from the present case. The opinion of a captain of a vessel, as to whether a hand-rail is needed at a certain place, is undoubtedly admissible to aid a jury in determining the question, since he knows much better than they do the dangers to be guarded against. The court in that part of the charge complained of in regard to the duty of carriers in using modern improvements in their business, stated the law correctly: Lawson on Carriers 179; Wharton on Negligence § 631; Ingalls v. Bills, 9 Metc. 1; Caldwell v. New Jersey S. B. Co., 47 N. Y. 282; Robinson v. N. Y. C. & H. Riv. R. Co., 9 Fred. Rep. 877; Stokes v. Saltonstall, 13 Pet. 181; Penna. Co. v. Roy, 102 U. S. 451; Frankford Turnpike Co. v. R. Co., 4 P. F. S. 345. There was such strong evidence of negligence on the part of the company in failing to supply a hand-rail, and in the grossly improper treatment of Dr. Hirons as to warrant the submission of it to the jury: Longmore v. G. W. R. Co., 115 E. C. L. R. 183; Dougan v. Champlain T. Co., 56 N. Y. 1.

Mr. Justice STERRETT delivered the opinion of the court, October 1st 1883.

Plaintiff below was a cabin passenger on board the company's steamship Pennsylvania on her voyage from Liverpool to Philadelphia, during which the vessel for several days in succession encountered a heavy sea. After the storm had somewhat abated, plaintiff attempted to cross the saloon for the purpose of entering the state-room of a fellow-passenger. While she was in the act of doing so, the ship gave a sudden lurch by which she was thrown backwards on the floor, and in the effort to save herself, the bones of her wrist were fractured. She fell alongside a smooth paneling, twelve feet long, covering the space between the first two alcoves of the cabin, and near the staircase leading to the deck. At that point there was no guard or railing by which passengers might support themselves in case of sudden motion of the vessel. The omission of the company to provide such guard or rail to which plaintiff might have clung, and thus avoided injury, constitutes the negligence on which the action is mainly grounded. In addition thereto, the declaration charges negligence and unskillfulness of the ship's surgeon in his treatment of the fracture, but inasmuch as binding instructions were given in favor of the defendant, we are relieved from the further consideration of that branch of the case.

As to the main ground of complaint, the declaration containing the necessary preliminary averments charges that it was the duty of the steamship company "to use due and proper care and skill in and about carrying and conveying plaintiff, and to furnish a good, staunch and sufficient ship for that purpose, with proper and sufficient appliances and hand-rails to insure the safety and security of plaintiff; yet, defendants not regarding their duty in that behalf, did not furnish a good, staunch and sufficient ship, with proper and sufficient appliances, handrails," etc. The general goodness and seaworthiness of the vessel were not questioned. The only defect complained of is the want of the guard or hand-rail along the paneling above mentioned. The plaintiff's evidence was: 1st. Her own testimony, in which she fully explains how the injury occurred, and says she could have prevented herself from falling if there had been a hand-rail at the...