Koch v. City of Williamsport

• Decision Date: 30 April 1900
• Docket Number: 224
• Citation: 46 A. 67,195 Pa. 488
• Parties: Koch v. City of Williamsport
• Court: Pennsylvania Supreme Court

46 A. 67

195 Pa. 488

Koch v. City of Williamsport

No. 224

Supreme Court of Pennsylvania

April 30, 1900

Argued March 13, 1900

Appeal, No. 224, Jan. T., 1899, by defendant, from judgment of C.P. Lycoming Co., March T., 1895, No. 510, on verdict for plaintiff, in case of Phoebe Koch v. City of Williamsport. Affirmed.

Trespass for personal injuries. Before MAYER, P.J., specially presiding.

At the trial it appeared that plaintiff was injured on the night of July 4, 1895. At the time of the accident she was riding in a conveyance in the city of Williamsport. As the carriage was going down Park avenue the driver drove into a stone pile, of which no warning was given by signal lights and just as he did so, a street car came along and came in collision with the conveyance, resulting in serious injuries to plaintiff. The defendant claimed that the obstruction in the street was building material placed there by a contractor named Walz who was constructing a building for an adjoining owner named Stead. The testimony showed that the stones had been deposited in the street on the 1st, 2nd and 3d of July, the pile increasing in size from day to day.

The plaintiff on the witness stand was asked:

"Q. State whether or not your husband deserted you at or about that time -- about August, 1894. A. Yes, sir, he did."

Mr Reardon: Counsel for the defendant object to the testimony of the witness as to the desertion of her husband, first, because it is not set forth in the plaintiff's declaration; second, because it is incompetent, irrelevant and immaterial; and third, because there is no stipulation of release filed in this case as provided by the act of assembly.

The Court: The objection is overruled and the evidence admitted and bill sealed for defendant. [1]

"Q. State whether or not you made an application for a divorce from him. A. I did."

Mr. Reardon: Counsel for defendant object to the testimony of the witness because incompetent, irrelevant and immaterial.

The Court: The objections are overruled and evidence admitted. [2]

Evan Russell, an ex-chief of police, was asked this question:

"Q. State whether or not these oral instructions that you have stated that you gave to the police with regard to obstructions were ordered to be given by the mayor and approved by him."

Mr. Reardon: That question is objected to as not being the best evidence; second, because the witness is incompetent to testify to such a question, and it is, therefore, irrelevant and immaterial.

The Court: The objections are overruled and the evidence admitted. [3]

Counsel for defendant offered in evidence agreement between Walz and Stead.

Mr. Gilmore: Counsel for plaintiff object to the evidence offered as incompetent, irrelevant and immaterial.

The Court: I do not see how that can be evidence. [4]

Defendant's points were as follows:

1. That Andrew H. Walz and Thomas March, who placed the stone heap upon this street, were independent contractors, and that the city defendant cannot be held liable for the negligence of independent contractors, and that the verdict of the jury must be for the defendant. Answer: We refuse that point under the circumstances as disclosed by the evidence in this case. [5]

2. That under the evidence in this case the immediate and proximate cause of the injury to the plaintiff was the collision between the car of the Vallamont Passenger Railway company and the buggy in which plaintiff was riding at the time of the injury, and that, therefore, there can be no recovery against the city in this case. Answer: That point is also refused, because it is a question of fact for the jury under the evidence as to what was the proximate cause of the injury in this case. If it was by reason of the stone pile being there, and by reason of that that the driver of the conveyance drove into it just as a street car came along, and it all occurred by reason of the stone pile being there, the city would be liable if it was guilty of negligence. [6]

The court charged in part as follows:

[I may as well say that the question has been raised here whether this plaintiff, Phoebe Koch, being a married woman, can recover without her husband joining in the action. The act of 1897 requires that where an injury is sustained by the wife suit shall be brought in the name of the husband and the wife, and the husband can recover what he is entitled to under the law and the wife what she is entitled to, and a separate verdict would be rendered for both the husband and wife. But as the testimony in this case shows, the wife was deserted by the husband, who left her a year before the accident occurred and has not been living here and not supporting and maintaining her since. It would be impossible for her to bring the suit joining the husband, because he is not here to assert his right, and we do not know what injury he has sustained. She might not be able to bring a suit where the husband deserts her -- if the husband deserts her and remains away. So we say to you that this wife is entitled to recover for the injury she has sustained to herself, and not for injuries her husband might be entitled to recover under the law. . . . Mrs. Schneider also testified that she was unable to stoop down and perform labor in the usual way; that when she did that she became dizzy. Mrs. Koch also testified that she was unable to do but very little labor since that; that her one side is partially disabled, and that her hand is disabled, and in consequence of that she has been unable to labor. She seeks to recover compensation from the city of Williamsport for the injuries which she alleges she has sustained. If, under the instructions of the court, the jury believe she is entitled to recover, then she would be entitled to be fully compensated for these alleged injuries whatever the jury in their judgment think would be a fair...