Baron v. Reading Iron Co.

• Decision Date: 21 April 1902
• Docket Number: 323
• Citation: 51 A. 979,202 Pa. 274
• Parties: Baran, Appellant, v. Reading Iron Company
• Court: Pennsylvania Supreme Court

51 A. 979

202 Pa. 274

Baran, Appellant, v. Reading Iron Company

No. 323

Supreme Court of Pennsylvania

April 21, 1902

Argued March 4, 1902

Appeal, No. 323, Jan. T., 1901, by plaintiffs, from judgment of C.P. Montour Co., Oct. T., 1897, No. 60, on verdict for defendant in case of Joseph Baran and Margareta Baran, his Wife, v. Reading Iron Company. Affirmed.

Trespass to recover damages for personal injuries. Before LITTLE, P.J.

At the trial it appeared that on October 8, 1896, plaintiff's infant daughter, aged about six months, was killed by the explosion of one of the boilers in the defendant's iron mill. One of the pieces of the boiler was carried into plaintiff's house, and killed the child when it was in bed.

When Frank Hutchinson, a witness for the plaintiff, was on the stand, he was asked the following question:

"Q. Immediately after the accident on October 8, 1896, did you have any instructions from your superior as to what to do, so far as the steam check was concerned; in case where a furnace was drawn and not working? A. Yes, sir."

Mr Scarlet: Objected to as incompetent and irrelevant.

The Court: The question was, immediately after.

Mr Scarlet: What is the purpose?

Mr Hinckley: The purpose of the question is to show that after the accident the waterman was instructed that in all cases where a furnace was drawn and not working, that the steam check should be closed and the boiler disconnected from the steam system. As evidence going to the jury to prove the negligence of the company before the accident.

The Court: If it was a part of the transaction that this conversation was had, it may be given in evidence, but we think that counsel for the plaintiff should ascertain how long after the time of the accident this conversation was had before asking the question. Exception noted. Bill sealed for the plaintiff. Do you offer that as part of the transaction, the conversation occurring immediately after the accident? Fix when the time of this conversation he had with his superior occurred.

"Q. When did Mr. Bevin, your superior, give you orders as to what to do in case of a drawn furnace, as to the steam connections?"

Mr. Scarlet: How long after? We object to this question as suggesting to the witness what to say. It is a leading question.

The Court: If a declaration of this superior officer is a part of the transaction, we think it ought to be admitted, and that is the reason we suggested to you that you should inquire when this conversation occurred.

Mr. Hinckley: I will ask this question then:

"Q. Did you receive after the accident, instructions from your superior as to what you were to do, with reference to the steam check and its connections, in case of a furnace that was drawn and not working?

The Court: The declaration made by the servants of this company, after the accident, relative to the alleged defects of these boilers, are not admissible. Those declarations are not part of the res gestae. But if the declarations that you propose to prove are part of the res gestae, then we think that they are evidence, and you can inquire from the witness how long after this accident occurred those statements were made by his superior. We have indicated what we believe to be the rule, and have suggested to you that you should inquire as to the time when this conversation was had between the superior officer and himself.

Mr. Hinckley: Your honor will see that I will have to ask whether the conversation did occur.

Mr. Scarlet: Do you pretend to say that you don't know this?

Mr. Hinckley: I can't tell you the precise moment.

The Court: We think, judge, you should ascertain the time from the witness privately.

Mr. Hinckley: Connsel for plaintiff having shown by the witness upon the stand that at the time of the accident he had no instructions from his superior officer, as to what to do with the steam connections of the boiler with the steam main in case of a furnace that was drawn and not working; propose to show by the witness upon the stand that after the accident it was necessary to shut down the mill and clean the debris and replace the destroyed furnace, and that in consequence the mill was closed down some two or three weeks, and that upon resuming work, the first work that was done after the accident, instruction was given by his superior officer, the master mechanic, that hereafter in all cases where a furnace was drawn that the steam connections should be closed and the boiler disconnected from the steam main. This all for the purpose of showing the negligence in the company in not having given such orders prior; one of the allegations of the plaintiff being that this accident occurred from want of such orders and from want of the disconnection of the boiler from the steam main.

Mr. Scarlet: Defendant's objection is that, if, as counsel stated, this offer is part of the res gestae, we object to it as incompetent and irrelevant. And secondly, that it is not shown nor pretended to be shown that the witness upon the stand was not a competent and careful water tender and knew what was to be done in cases of that kind, without any instructions whatever from any other person, prior to the accident.

The Court: The declarations made by the superior officer of the witness upon the stand when he resumed work three or four weeks after the accident occurred, we do not admit as part of the res gestae. The objection is sustained. The offer overruled. Exception noted and bill sealed for the plaintiff. [4]

Frank Hutchinson recalled for plaintiff.

Examined by Mr. Hinckley.

Mr. Hinckley: I wish to renew an offer that was made yesterday. I will give the form to the stenographer.

It having been shown by plaintiffs' proof, that the ordinarily safe and prudent thing to have done in case a furnace was shut down, was to cut off the steam connection, and the witness having shown that the waterman in charge of the boiler in question (together with other boilers) had received no orders from his superior as to what to do in such case, and that he had not cut off the steam connection at the time of the explosion; it is proposed now to show by the witness that after the explosion there were required a week or two to clean up the debris and repair the machinery, and that as soon as the mill was again started, after the accident, defendant company issued orders to the waterman that in all cases where a furnace was shut down for repairs the steam connection should be cut off, as plaintiffs' proof shows should have been done at the time of the accident. This for the purpose of showing a recognition by defendant company of negligence in not having done so before.

Mr. Scarlet: It is objected by the defendant that it is not shown, that the witness, proposed to be asked the question, upon the stand, was incompetent in any way to know what to do under circumstances of that kind, and that, therefore, without proof of negligence on the part of the company in hiring an incompetent person to take charge of the water of the mill, this testimony would be irrelevant and incompetent, and would not go to prove the specific act of negligence of the defendant for which this action is brought, and which it is incumbent upon the plaintiff to prove as being the cause of the accident; and it further being shown by the plaintiff in the cause that it was not the cause of the accident, but that an entirely different theory of negligence is asserted, to wit: that the accident occurred by reason of the fact that the boiler broke, with which the action of the waterman or of the fireman or of any one else had no connection whatever; and being an entirely different and distinct cause of the explosion, it is therefore incompetent and not in support of the plaintiff's theory.

The Court: We believe that the proposed offer, if admitted, would tend to show declarations made a couple of weeks after the accident or explosion, by a servant of the company, and for the purpose stated in the offer we do not believe it is admissible in evidence, it being no part of the res gestae. The objection is sustained and the offer overruled. Exception noted for the plaintiff. Bill sealed. [5]

George Sandal sworn for plaintiff.

Examined by Mr. Hinckley.

"Q. Where do you live, Mr. Sandal? A. Mahoning township. Q. What is your occupation? A. Millwright. Q. Did you work at any time at the Reading Iron Company, and if so, when? A. I did. I worked there in 1896. Q. As millwright? A. Yes, sir. Q. What time in 1896? A. The whole year of 1896. Q. Did you do any work in replacing the boiler at the furnace where this No. 5 was blown out? A. I did. Q. When? A. After the explosion. I can't just remember the exact time. It was several weeks afterward, when they got the boiler ready to put in. Q. Will you tell us how you hung or supported that boiler?"

Mr. Scarlet: Objected to as incompetent and irrelevant.

Mr. Hinckley: We make this offer: Plaintiffs' proof showing that it was an imperfect support of boiler No. 5 to rest one end upon a nine-inch wall, and suspend the other end by a hanger and bolt, but that a proper support would have been to suspend the boiler from the center; in addition, it is proposed to show by the witness who was the millwright in the employ of the defendant company and who replaced the boiler at the furnace where the exploded boiler had blown out, that after the accident, when boiler No. 5 was replaced by another boiler, that the defendant company did support it by an additional support from the center. This for the purpose of showing a recognition by the defendant company of its negligence in not supporting the former boiler from the center.

Mr Scarlet: That is objected to as being incompetent, because it would not be a recognition...