Beardslee v. Columbia Township

• Decision Date: 14 November 1898
• Docket Number: 259
• Citation: 41 A. 617,188 Pa. 496
• Parties: Charles Beardslee and Martha Beardslee, his wife, for the use of Martha Beardslee, Appellants, v. Columbia Township
• Court: Pennsylvania Supreme Court

41 A. 617

188 Pa. 496

Charles Beardslee and Martha Beardslee, his wife, for the use of Martha Beardslee, Appellants, v. Columbia Township

No. 259

Supreme Court of Pennsylvania

November 14, 1898

Argued March 14, 1898

Appeal, No. 259, Jan. T., 1897, by plaintiffs, from judgment of C.P. Bradford Co., Feb. T., 1895, No. 213, on verdict for defendant. Reversed.

Trespass to recover damages for personal injuries. Before DUNHAM P.J., of the 44th judicial district, specially presiding.

At the trial it appeared that on September 6, 1894, Martha Beardslee while riding in a wagon with her son was injured by the wagon going over an alleged dangerous and unguarded place in the road.

When E E. Vanvalkner, a witness called by plaintiff, was on the stand, he was shown on cross-examination, a photograph marked exhibit "E," and permitted, under objection and exception that it was not cross-examination, and that no proof had been given of the identity and accuracy of the photograph, to testify to the locality of the accident, as shown by the photograph. [1]

The witness further testified:

"Q. Wherein does that photograph differ from the road on the day of the accident, if it does? A. It differs considerably. Q. Now, state to the court and jury wherein it differs. A. Well, it differs in the width of it. Q. Well, anything else? A. Well, the road being straightened. There isn't that curve there now that there was at that time. Q. Anything else?"

Mr. Rockwell, of counsel, for plaintiffs: We ask what the purpose of this examination is?

Mr. Maxwell, of counsel, for defendant: It is for the purpose of testing the witness's knowledge as to the situation of the road.

"Q. Do you see anything else on that that differs from the road at the time of the accident? A. Well, this don't show the hill being as steep as it was, is another thing. It is a more gradual grade than it was at that time. Q. That shows the hill exactly as it is with the exception of the changes that were made there after the accident, by the road commissioners?"

Mr. Wilson, of counsel, for plaintiffs: We object to this witness being permitted to use this paper or diagram marked exhibit "A" as a test to describe the road by where this accident happened, until there is some proof by some witness that this picture or exhibit has some show of the road as it existed at or about the time of the accident, and that it is not cross-examination.

Objection overruled, exception and bill sealed. [2]

Mr. Maxwell: "Q. Do those photographs, exhibits 'A' and 'B,' represent the situation as it existed at the time the photographs were taken upon the ground? A. I think they do."

Mr. Rockwell: "Q. They do not exhibit the whole of the hill, do they? You did not pretend to take the whole of that hill, did you, there, that day? A. Not in one picture, no, sir. It would be an impossible thing to do. Q. Nor in two pictures? A. No, sir, not the whole hill."

Mr. Maxwell: We now offer in evidence the photographs marked respectively exhibits "A" and "B."

Mr. Wilson: We object to those photographs going to the jury on the ground that the evidence shows that they do not show or pretend to show the road as it existed at the time of the accident.

By the Court: The evidence shows just what they do show and that will admit them.

Objection overruled, exception and bill sealed. [3]

W. O. Hager, a witness for defendant, was asked this question, in chief:

"Q. What would you say the conduct of a person riding down this hill at the point where it was said that Beardslee met with the accident in September, 1894, behind a pair of colts, one three years old and one four years old, in a platform wagon, without any brake or locking, with twelve cheeses weighing thirty-three pounds each, including the boxes, and with thirty to thirty-five dozen eggs in the wagon and five persons, three grown and two small children, with a harness without any breeching on; what would you say as to the conduct of the person, who was familiar with the road, riding down there under these circumstances?"

Mr. Rockwell: We object that the witness has not shown himself qualified; that he does not pretend to know anything about this wagon, this team or this driver, and has not shown himself to be an expert in business of horsemanship; the evidence is not rebutting, and is not evidence in this case for the reason that the jury must pass on this question.

Objection overruled, exception and bill sealed.

"Q. What is your answer about coming down the hill? A. I should not consider it very safe under those circumstances." [4]

Similar questions were asked five other witnesses, and the rulings were the same. [5-9]

The following question was asked a witness by defendant's

"Q. What would you consider the conduct of a party who would ride in a platform wagon going down the Bailey hill road, with five persons in the wagon (three grown persons and two children), with twelve cheeses in the same weighing thirty pounds each, exclusive of the boxes, and from thirty to thirty-five dozen eggs; hitched to two colts, one a three year old and one a four year old colt, one of the colts unshod, and using a harness without any breeching, or having any brake upon the wagon, and not locking the same, and he was familiar with the road on September 6, 1894?"

Mr. Wilson: We object to the answer to this question as being irrelevant and not proper testimony, the evidence already showing that the person injured here was not the owner of the wagon or the team, and was nothing else but a passenger at a free ride, and had nothing to do with the driving, and no control over the teamster, nor any interest in the trip, except as an accommodation ride; and that the whole question is a question of fact for the jury and not for an expert, or a witness who is not an expert, and that this witness is not competent as an expert.

By the Court: A person that rides with another, as we understand the law, is responsible for all patent and known defects that he knows of, or by reasonable diligence should know. It would be just as much an act of negligence for a person to get in and ride with another person who had an unsafe conveyance, and go over a place, as it would for the person who drove the conveyance, if she knew of it. Mrs. Beardslee in this case has testified that she knew of the load that was in the wagon and knew that the wagon had no brake upon it, and she knew or could have known by reasonable care that the harness had no breeching on, and we do not think that the court would be justified in ruling that a woman does not know anything about business, and is not responsible for her acts the same as a man. So far as that is concerned we will admit the evidence; but as to the competency of this witness, we have some doubt, as we do not think he has given sufficient knowledge of his being an expert teamster to permit him to testify upon that subject.

Objection sustained.

The plaintiffs took exception to the remarks of the court in sustaining their objection. Bill sealed for plaintiffs. [17]

Verdict and judgment for defendant. Plaintiffs appealed.

Errors assigned among others were (1-9) rulings on evidence, quoting the bill of exceptions; (17) remarks of the court while sustaining plaintiffs' exceptions, quoting the language.

Judgment reversed and venire de novo awarded.

COUNSEL:

D. A. Overton, with him E. B. Parsons, for appellants. -- A photograph must be verified by proof that it is a true representation of the subject, and whether it is sufficiently verified is a preliminary question of fact to be decided by the judge presiding at the trial: Blair v. Pelham, 118 Mass. 420.

The general rule is that witnesses must testify to facts, and not to opinions: Platz v. McKean Twp., 178 Pa. 601; Cookson v. Ry., 179 Pa. 184; Auberle v. McKeesport, 179 Pa. 322; Graham v. Penna. Co., 139 Pa. 149.

The rule, as we understand it, that where a person has the choice of two ways, one of which is perfectly safe, and the other is subject to risks and dangers, and he voluntarily chooses the latter, and is injured, he is guilty of contributory negligence and cannot recover. In this case there was no duty on the plaintiffs to take the other road: Haven v. Pittsburg, etc., Bridge Co., 151 Pa. 620; Lynch v. Erie, 151 Pa. 380; Sheridan v. Palmyra Twp., 180 Pa. 439; Trexler v. Greenwich Twp., 168 Pa. 214; Pittston v. Hart, 89 Pa. 389.

Where a person is driving with a friend, and is injured by the negligence of another, the contributory negligence of the driver cannot be imputed to the person injured: Finnegan v. Foster Twp., 163 Pa. 135; Dean v. R.R., 129 Pa. 514.

Wm Maxwell and A. C. Fanning, for appellee. -- The...