Huntingdon & Broad Top Mountain Railroad & Coal Co. v. Decker

Mr. Justice Mercur delivered the opinion of the court, October 9th 1876. The first assignment of error is to the admission of the declarations of the superintendent of the company, made on the day after the accident. It is a well-established rule that the declarations of an agent, made at the time of the particular transaction which is the subject of inquiry, and while acting within the scope of his authority, may be given in evidence against his principal, as a part of the res gestee. It is equally as well settled that the declarations of an agent, made after the transaction is fully completed and ended, are not admissible: Magill v. Kauffman, 4 S. & R. 320; Hough v. Doyle, 4 Rawle 291; Clark v. Baker, 2 Whart. 340; Bank of Northern Liberties v. Davis, 6 W. & S. 285; Pennsylvania Railroad Co. v. Books, 7 P. F. Smith 339. The declarations of officers of a corporation rest upon the same principles as apply to other agents. Idem. A question was raised whether the declarations testified to by John Ohappel were not made on the day of the accident and immediately thereafter. A reference to his testimony clearly shows them to have been made on the next day. After he had testified to a conversation he had had with the superintendent on the day or evening' of the accident, and before the evidence covered by this assignment was offered, the question was put to him, “Did he say anything about Bowser having disobeyed orders ?” To this the witness answered, “He did not say that until the next day.” Again, after the court decided the evidence admissible, the first question put to him was, “You stated you had a conversation with McKillips the day after the accident about Bowser?” To this the witness answered, “Yes,” and proceeded to narrate it. The objection is not to proving the fact of the superintendent’s knowledge of Bowser’s improper conduct and habits, but to the mode of proof. The evidence ought not to have been received. We see no error in admitting the evidence covered by the second and fourth assignments. It was clearly competent to prove Bow [124] ser’s accustomed disobedience of orders and his habitual drunkenness ; that these facts were known to the superintendent, who had the entire control and management of the road, including the right to employ and to discharge conductors and hands. Where a railroad company employs a conductor who is unfit for the business and knows his unfitness, it is chargeable with the consequences of the conductor’s negligence, even to one employed in the same general service. Knowledge of the superintendent, possessing the general powers stated, is knowledge to the company: Frazier v. Pennsylvania Railroad Co., 2 Wright 104; Caldwell et ux. v. Brown et al., 3 P. F. Smith 453; O’Donnell v. Allegheny Valley Railroad Co., 9 Id. 239; Ardesco Oil Co. v. Gilson, 13 Id. 146; Patterson v. Pittsburgh & Connellsville Railroad Co., 26 Id. 389. When a conductor is shown to be habitually intoxicated, it raises a presumption of negligence in case of accident: Pennsylvania Railroad Co. v. Books, supra. The third assignment relates to the incompetency of the superintendent on the day of the accident. Unless some act of his contributed to the accident, it mattered not what his habits were. Hence no evidence should have been received of his general incompetency, unless it was shown that it contributed to the injury. In this case it is shown that the order of the superintendent was correct and proper. It is shown that the collision was caused by the carelessness of Bowser in not correctly reading the order, or in not obeying it. There was therefore error in receiving evidence of his incompetency. It is true, when the court charged the jury, it withdrew from their consideration the evidence tending to show him unfit for the position; but did this cure the evil ? In Shaeffer v. Kreitzer, 6 Binn. 430; Nash v. Gilkeson, 5 S. & R. 352; Ingham v. Crary, 1 Phila. R. 388, it was held that when evidence had been improperly admitted which was calculated to affect the minds of a jury, the error was not cured by the direction of the judge that it should not be regarded. In Unangst v. Kreamer, 8 W. & S. 391, and in Miller v. Miller, 4 Barr 317, the former cases were somewhat modified; but in the Delaware & Hudson Canal Co. v. Barnes et al., 7 Casey 193, all the cases were reviewed. The cases are there distinguished, and it is shown that in both of the latter the evidence was withdrawn from the jury immediately after it had been given. The manifest reasoning of the court was to hold that whenever the testimony received was of such a character as to inevitably tend to prejudice the minds of the jurors, the error was not cured by the court telling them, after the argument had closed, not to consider the testimony. In this case the evidence had undoubtedly produced an impression on the mind of the jury. It was calculated to impair the effect of his testimony in regard to other facts in the ease. Although the court did say to them that his character and habits had nothing to do with the issue, and that they should [125] “ dismiss from their minds any impression made by the testimony in this particular,” yet in so far as it. affected his general reputation as a witness it was ..not withdrawn, nor could its effect be entirely removed. r • Under the whole evidence and charge of the court we discover no substantial error in the remaining assignments. Judgment reversed, and a venire facias de novo awarded.