Lyke v. Lehigh Valley R. Co.
| Decision Date | 08 April 1912 |
| Docket Number | 20 |
| Citation | 84 A. 595,236 Pa. 38 |
| Parties | Lyke v. Lehigh Valley Railroad Co., Appellant |
| Court | Pennsylvania Supreme Court |
Argued March 11, 1912
Appeal, No. 20, Jan. T., 1912, by defendant, from judgment of C.P. Bradford Co., Dec. T., 1907, No. 235, on verdict for plaintiff in case of Frank B. Lyke v. Lehigh Valley Railroad Company. Affirmed.
Trespass to recover damages for personal injuries. Before FANNING P.J.
At the trial the counsel for the plaintiff made the following offer "We offer in evidence the stenographer's notes of testimony in the case of William Ackley against Lehigh Valley Railroad Company, on the 15th day of February, 1907, beginning at page 94; being the testimony of the plaintiff, a witness called in that case, as to where his position was at the time of the accident.
Mr. Maxwell, counsel for defendant company: For what purpose do you offer this?
Mr. Lilley: For the purpose of showing that his testimony in this case is not a fabrication of recent date. Said testimony being as follows:
Q. Where were you when the accident occurred, and what were you doing? A. I was on the car. We had put one marker on the wagon and we had just started another marker to put on, when the accident occurred.
Mr. Maxwell: Counsel for defendant objects to the offer for the following reason:
It appears from the testimony, in the case, that this accident occurred on the 21st day of December, 1905, and that the witness testified, and that the notes of testimony offered were given the 15th day of February, 1907; therefore the notes of testimony offered are incompetent, not rebutting, and are in the nature of self-serving declarations or statements of the plaintiff.
Defendant does not claim that the evidence given by the plaintiff in this case is of recent fabrication, but does claim that the plaintiff, at the time he so testified, in the Ackley case, was placing himself in a position to bring a suit against the defendant company, and what he testified to in that case, as to where he was, was false at the time, and was not made before its effect and operation could be seen; and not before a time when there was an inducement for him to fabricate, for the purpose of putting himself in a position to bring suit against the defendant company, and was not made before there was a motive, inducing the false statement to be made by him.
The Court: The testimony may be received for the purpose offered. The objection is overruled; and exception is noted for the defendant, and a bill sealed.
(Evidence offered read to the jury.)
Mr. Lilley, counsel for plaintiff: "We offer in evidence the testimony of Frank B. Lyke, the plaintiff, given on the trial of the case of George B. Lafey against the Lehigh Valley Railroad Company, in Number 22, May Term, 1906, taken on the 20th day of December, 1906, and found on page 80 of the stenographer's notes of testimony of said trial -- the extract offered being as follows:
This is for the purpose of showing that the plaintiff's testimony in this case is not a fabrication of recent date.
Mr. Maxwell, counsel for the defendant company: I object to the offer, on the ground that it is not rebutting, is incompetent, and in the nature of self-serving declarations or statements.
The defendant does not claim that the evidence given by the plaintiff is of recent fabrication, but claims and contends that the plaintiff at the time he so testified in the case of George Lafey, was placing himself in a position to bring suit against the defendant company and what he testified to in that case, as to where he was at the time of the collision was false at that time and not true, and wasn't made before its effect and operation could be seen, as it was made about one year after the accident, and not before there could have been an inducement to fabricate, and wasn't made before there was a motive inducing false statements to be made by him.
The Court: We will receive this evidence for the purpose offered; an exception is noted for the defendant company and a bill sealed. (3)
Claude May, a witness, on the stand.
Mr. Lilley, counsel for plaintiff: We offer to show by the witness on the stand, that immediately after the accident he had a conversation with the plaintiff, Mr. Lyke, in which he was informed by the plaintiff that he was on the car at the time of the accident, and that he was thrown forward and off the car and had his knee injured.
This is for the purpose of showing that his testimony in this suit is not a fabrication of recent date.
Mr. Maxwell, counsel for the defendant company: It is objected to, as incompetent, immaterial and not rebutting and is in the nature of self-serving declarations. The defendant claims that the statement of the plaintiff, that he was upon the car, was made for the purpose of putting himself in a position where he might bring suit against the defendant company and is therefore incompetent.
The Court: For the purpose offered this testimony is received; an exception is noted for the defendant company and a bill sealed. (4)
Mr. Lilley: Q. When was this conversation you had with Mr. Lyke? A. Shortly after the accident. Q. How close to it? A. Probably fifteen or twenty minutes. Q. What did he say? A. Why, I asked him if he had been hurt; I saw him limping; and he said he had; he said he was on the car and was thrown off on the ground and hurt his knee, or leg.
Patrick Costello, the engineer, was asked this question on cross-examination:
Q. If there had been a target on this switch standard, known as the Opera House switch, whether or not it would have made any difference with your running in on that switch that morning? A. Not that day -- not that time.
Mr. Lilley, counsel for plaintiff: That is objected to, as incompetent.
The Court: Yes, that is more a conclusion than a statement of fact. He may explain fully the situation, what he could see and what he couldn't see, but this is more of a conclusion.
Mr. Lilley: We ask to have his answer struck out.
Mr. Maxwell, counsel for defendant company: I object to striking out the answer of the witness on the ground that it is not a conclusion it is the statement of a fact.
The Court: We will strike out the answer of the witness and an exception is noted for the defendant company and a bill sealed. (5)
Verdict and judgment for plaintiff for $2,900. Defendant appealed.
Errors assigned were (1) refusal of binding instructions for defendant; (2) refusal of motion for judgment for defendant n.o.v.; (3-5) rulings on evidence quoting the bill of exceptions.
The judgment of the court below is affirmed.
R. W. Barrett, with him E. H. Boles, for appellant. -- We contend, that under the testimony, the absence of the switch target was not the proximate cause of the accident or injury: Ricard v. R.R. Co., 89 Pa. 193; Cummings v. Ry. Co., 92 Pa. 82; Laporte v. R.R. Co., 209 Pa. 469; Balt. & Ohio R.R. Co. v. Colvin, 118 Pa. 230.
Under the testimony of Patrick Costello, the engineer, the absence of the target had nothing whatever to do with his engine running into the Opera House switch siding, at the time of the accident. From his position in his cab and with his eyes riveted on Washington street crossing, some distance beyond the switch, he testified that he could not have seen the target had it been there.
The accident may have happened, and probably would, if the target had been on the switch stand, under the testimony of Mr. Costello. Therefore, the open switch was the proximate cause: Boehm v. Bethlehem Boro., 4 Pa. Superior Ct. 385.
It cannot be said, that the negligence, if any, in not having a switch target, concurred with the negligence of the switchman, in leaving the Opera House switch open, to produce the accident: Dixon v. Butler Township, 4 Pa. Superior Ct. 333; Wallace v. Henderson, 211 Pa. 142; Chicago St. P., M. & O. Ry. Co. v. Elliott, 55 Fed. Repr. 949; Balt. & O.R.R. Co. v. School District, 96 Pa. 65; Savitz v. Lehigh, Etc., R.R. Co., 199 Pa. 218; Chicago & E.I.R.R. Co. v. Driscoll, 12 Am. & Eng. R.R. Cases (N.S.) 644; Ahern v. Melvin, 21 Pa.Super. 462; Boehm v. Bethlehem Borough, 4 Pa.Super. 385.
The fact that the appellant, called many witnesses in the trial of the case at bar, who were present at the time of the accident, and who testified that appellee was not on the car at the time of the accident, and also called other witnesses who heard appellee say he was not on the car, would not entitle the plaintiff to introduce in rebuttal, his own evidence given upon the other trials: Clever v. Hilbery, 116 Pa. 431; Crooks v. Bunn, 136 Pa. 368; Thomas v. Miller, 165 Pa. 216; Com. v. Kay, 14 Pa.Super. Ct. 376; Com. v. Brown, 23 Pa.Super. 470.
D. C. DeWitt, for appellee, cited as to the proximate cause: Whitley v. Evans, 30 Pa.Super. Ct. 41; Bunting v. Hogsett, 139 Pa. 363; Sturgis v. Kountz, 165 Pa. 358.
Before BROWN, MESTREZAT, POTTER, ELKIN and MOSCHZISKER, JJ.
The accident alleged to have caused the injury to the plaintiff occurred December 21, 1905; suit was brought October 28 1907, and the trial was held on Monday 8, 1911. According to the proofs accepted by the jury, the plaintiff and several other men were engaged in unloading a monument and markers from a flat-car of the defendant railroad, which was standing on a siding in a certain yard of that company at Towanda, two box-cars being in close proximity. In some unexplained way the switch from the main track...
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