Baltimore & Ohio Railroad Co. v. Sulphur Spring Independent School Dist.

• Decision Date: 22 November 1880
• Citation: 96 Pa. 65
• Court: Pennsylvania Supreme Court
• Parties: Baltimore and Ohio Railroad Co. v. Sulphur Spring Independent School District.

Page 65

96 Pa. 65

Baltimore and Ohio Railroad Co. versus Sulphur Spring Independent School District.

Supreme Court of Pennsylvania.

October 28, 1880.

November 22, 1880.

October 28th 1880.

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

Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1880, No. 232.

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Markle & McCullogh, for plaintiff in error.—A verbal notice to an employee of the Pittsburgh and Connellsville Railroad Company, without authority and discretion, in 1856, and his admissions, are not competent evidence to bind the Baltimore and Ohio Railroad Company simply because the latter leased the railroad of the former in 1876. The declarations of the resident engineer of another railroad are hearsay as against the defendant, and, therefore, incompetent. This being the only testimony calling in question the sufficiency of the culvert, and being incompetent, it was error to submit to the jury the question of the sufficiency of the culvert as originally constructed. By the affirmance of plaintiff's points the court held the defendant to absolute care and diligence. Surely it is not a guarantor of the safety of property from extraordinary floods, and that, too, of property not abutting on its right of way: Pittsburgh, Fort Wayne & Chicago Railroad Co. v. Gilleland, 6 P. F. Smith 445; Hey v. Philadelphia, 31 Id. 44; McCully v. Clarke & Thaw, 4 Wright 399.

Hazlett & Williams, John F. Wentling and James S. Moorhead, for defendant in error.—The admissions of the engineer were made at the time of the particular transaction, which is the subject of inquiry, and while acting within the scope of his authority, and are, therefore, within the rule laid down in Huntingdon Railroad Co. v. Decker, 1 Norris 119; Dick v. Cooper, 12 Harris 217; Pennsylvania Railroad Co. v. Books, 7 P. F. Smith 339; Whart. on Ev., sect. 1170. The measure of the defendant's duty was properly defined: Bell v. McClintock, 9 Watts 119; Livezey v. Philadelphia, 14 P. F. Smith 106; Knoll v. Light, 26 Id. 268.

Mr. Justice GREEN delivered the opinion of the Court, November 22d 1880.

On the trial of this cause, the plaintiff made the following offer of proof by the witness, Alexander Fulton, viz.: "That he owned land on the line of the P. & C. Railroad Co. in 1856, and notified the engineer who was then employed by the P. & C. Railroad Co., and was engaged in the erection and construction of said barrels or culverts at Shaner's Station for the said company, that they were insufficient to receive and discharge the volume of water. That the engineer replied he knew they were not sufficiently large to receive the water." A similar offer, with a somewhat less precise designation of the character of the work in which the engineer was engaged, had been previously made and rejected, under objections by the defendant, but when repeated in the form last offered, the objections were overruled and the evidence was admitted. The witness then proceeded to testify that in 1856 he told the engineer who had charge of the construction of the culverts at Shaner's Station that they were too small and that the engineer had said in reply that "they were not sufficient in that shape from what he had seen of the floods there that summer." We think this testimony was erroneously admitted. The witness did not name the person with whom he held this conversation, so that it could with certainty be determined whether he was correct in his supposition that he was the engineer in charge of the construction, or so that an opportunity for a possible contradiction would be afforded. Moreover, the person, whoever he was, was not an agent of the defendant, but of another corporation which twenty-four years before had built the railway and culvert. Again, the testimony itself was but the opinion of the engineer as to the sufficiency of the culvert, communicated to another, and that opinion he could give directly to the jury. Its communication to another who was an entire stranger to the defendant, nearly a quarter of a century before the trial, certainly could not suffice to bind the defendant in any manner whatever. The second assignment of error is therefore sustained. We are also of opinion that the court erred in their answers to the plaintiff's second and third points. In affirming the first point, the court ruled that: "If there was negligence on the part of the defendant concurring with the act of God, at the time plaintiff's loss was sustained, then the defendant is liable, and the...