Pennsylvania Railroad v. Titusville & Pithole Plank Road Co.

The opinion of the court was delivered, by Sharswood, J. We think there was no evidence of a special contract which ought to have been submitted to the jury. The evidence consisted entirely of alleged admissions by Baldwin, the superintendent of the Pennsylvania Railroad, from which the jury were left to draw the inference that there had been a prior special contract. Nothing is better settled than that it could not be so found. The general rule on this subject is very clearly and succinctly stated by Mr. Justice Rogers in Hough v. Doyle, 4 Rawle 294. “ When it is proved that one is the agent of another, whatever the agent does, or says or writes in the making of a contract, as agent, is admissible in evidence against the principal, because it is part of the contract which he made for his principal, and which therefore binds him, but it is not admissible as to the agent’s account of what passes. For example, the declaration of a servant employed to sell a horse, is evidence to charge the master with warranty, if made at the time of the sale; if made at any other time the facts must be proved by the servant himself. The admissions of an agent, not made at the time of the transaction, but subsequently, are not evidence. Thus, the letters of an agent to his principal, containing a narrative of the transaction in which he had been employed, are not admissible in evidence against the principal.” It would be a mere affectation of learning to cite the long array of cases from Hannay v. Stewart, 6 Watts 487, to Fawcett v. Bigley, 9 P. F. Smith 411, in which this rule has been reiterated and applied. The declarations in question were certainly admissible as those of an agent of a common carrier in the course of his employment as such, but not to prove a prior special contract. And indeed admitting that these declarations could be used for such purpose, the inference attempted to be drawn from them was a very strained one. This sustains the 1st, 3d and 6th assignments. The next important question is, whether the ruling of the judge below as to the measure of damages was accurate. We need not consider how it would have been had there been a special contract. The undertaking of the railroad company and their duty as common carriers was to furnish cars and transport the lumber of the Plank Road Company from Wilder’s siding and Lovell station to Corry. From there it was to be transported over the Oil Creek Railroad to Titusville. The-duty of the Pennsylvania Railroad ended at Corry. What then ought to be the measure of damages on the failure of duty of the railroad company to transport to Corry ? The rule is compensation; such damage as might reasonably have been anticipated, and within the view of the' parties. The measure then would be as the court would seem in part to have admitted, “ the difference between the price of lumber a.t Wilder’s siding, the point on the railroad from which it was to be [356] transported, and at Corry, at which place it was to be transported to the Oil Creek road for Titusville, after deducting the cost of transportation.” It is true, this rule must be received with the necessary qualification, that lumber of the kind required in sufficient quantities could be obtained at Corry, and that the common carrier must compensate for whatever delay might arise from his failure; but to say that the increased expense of labor in putting down the planks in consequence of such delay, would be such an immediate and proximate effect as ought to be charged to the common carriers, seems to be entirely too indefinite. It would include a rise of wages — stormy weather — bad roads in consequence— which would be entirely beyond what would naturally have been within the view of the parties, and might well have happened even had the railroad company punctually performed their duty. The natural consequences of delay and stoppage of work and payment of wages, and expenses arising therefrom, and the loss from not having the work finished at the time it otherwise would have been, form the rule. We think that there was error in rejecting the offer to prove that portable mills could have been erected, and the lumber manufactured to the amount contracted by plaintiff from Packard, Abel & Co., and delivered on the line of the Oil Creek road within the time and at the price specified in said contract. It was certainly the duty of the plank road, when notified of the inability or refusal of the railroad to transport their lumber, to adopt every proper and feasible means of supplying themselves, and if they neglected to avail themselves of any such means, it certainly would form an element for the consideration of the jury in estimating the damages. The other errors assigned are not sustained. Judgment reversed, and venire facias de novo awarded.