Caffery v. Philadelphia & R. Ry. Co.

• Decision Date: 06 May 1918
• Docket Number: 220,221
• Citation: 104 A. 569,261 Pa. 251
• Parties: Caffery et ux. v. Philadelphia & Reading Railway Company, Appellant
• Court: Pennsylvania Supreme Court

104 A. 569

261 Pa. 251

Caffery et ux. v. Philadelphia & Reading Railway Company, Appellant

Nos. 220, 221

Supreme Court of Pennsylvania

May 6, 1918

Argued January 16, 1918

Appeals, Nos. 220 and 221, Jan. T., 1917, by defendant, from judgment of C.P. No. 2, Philadelphia Co., June T., 1916, No 4228, on verdicts for plaintiff, in case of Maria B. Caffery and John M. Caffery v. Philadelphia and Reading Railway Company. Affirmed.

Trespass to recover damages for personal injuries. Before ROGERS, J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff, Maria B. Caffery, for $4,500.00; and for John M. Caffery for $2,650.00, and judgment thereon. Defendant appealed.

Errors assigned were rulings on evidence, instructions to the jury and in refusing a new trial.

The assignments of error are overruled and the judgments are affirmed.

William Clarke Mason, for appellant. -- It was error to permit the introduction of evidence to show that the witness Franciscus had threatened to commit perjury if the case were not settled: Kane v. Rapid Transit Co., 248 Pa. 160.

It was error to refuse to permit the records of the studio to be introduced in evidence: Wells Whip Co. v. Lanners Mutual Fire Insurance Co., 209 Pa. 488; Canfield v. Johnson, 144 Pa. 61; French v. Virginian Ry. Co., 93 Southeastern Reporter 585; Mississippi River Logging Co. v. Robson, 16 U.S.C.C.A. 400; Continental National Bank v. First National Bank, 108 Tennessee 374; United States for use of Hudson River Stone Supply Co. v. Venable Construction Co., 124 Federal 267; Jones v. Long, 3 Watts 325; Imhoff v. Fleurer, 2 Philadelphia 35; Pollock v. Wagenblast, 1 Philadelphia 18; Lowenstein v. Greenbaum, 65 Pa.Super. 19.

Thomas James Meagher, for appellees. -- The trial judge was right in refusing to permit defendant to prove, by books of a photographer, the date on which certain photographs were alleged to have been taken, where the person who took the photographs or who made the entries was not called as a witness and where no efforts to produce him were shown, nor was his handwriting proved; but the books were merely identified by the manager of the establishment as the books of the establishment.

The trial judge was right in admitting evidence in rebuttal that a witness called by defendant who was an uncle of one of the plaintiffs and employed by defendant, and whose evidence showed his hostility to plaintiffs, and whose credibility was seriously in question, had threatened to "lie the plaintiffs out of court" if they would not abandon or settle the case, especially where the liability of the defendant for the accident was not challenged and where defendant was not prejudiced.

Before BROWN, C.J., STEWART, MOSCHZISKER, FRAZER and WALLING, JJ.

OPINION

MR. JUSTICE WALLING:

These are actions by husband and wife for personal injuries to the wife. On August 7, 1916, the plaintiff, Mrs. Caffery, while a passenger on one of defendant's trains, was injured in a collision, under such circumstances as to render the carrier liable therefor. She lived at Coatesville, and, with members of her family, set out that morning for Atlantic City. After the accident she completed her journey and remained at said city for three days when her husband came and took her home. Her condition while there was a controverted question at the trial; plaintiff's evidence was that she was ill and defendant's that she was well and out as usual enjoying the pleasures of the resort. On that branch of the case defendant offered a photograph of Mrs. Caffery and members of her party in bathing suits, and evidence that it was taken there at the Palace studio on August 9, 1916. Another picture, in which Mrs. Caffery appears with others in bathing suits, was admittedly taken at a former visit to the same studio on the eighteenth of the preceding June, and plaintiff's evidence was that both pictures were taken at that time. Defendant called Mr. Lipp, the manager of the studio, who testified that a separate consecutive number was written in pencil on each negative and that they had a book in which was kept a daily record of the numbers corresponding with those placed on the negatives. This was to enable the studio to furnish additional photographs from the negatives on file. Neither of the photographs by the manager nor was the file. Neither of the photographs from the negatives on or in the book made by him; he present when either photograph number written. It is not shown that he saw the parties or had any personal knowledge of the transaction. A Mr. Menelick was employed at the studio and seems to have taken these photographs; but he was not called as a witness nor was it shown that the numbers on the negatives, or in the book, were in his handwriting or in the same handwriting. Mr. Lipp testified that he did not know where Menelick was; but it is not shown that any search, diligent or otherwise, was made to find him. The trial judge held that the book was not sufficiently proven and declined to admit it in evidence, or to permit a witness to state as facts information obtained therefrom; in which we see no error. Book entries or other like writings of private parties, to be competent as proof against third ...