Musser v. Lancaster City Street Railway Co.

Opinion by Mr. Justice Fell, The plaintiff while walking in the public highway was injured by the breaking of a wire cable used by the defendant company to control the movements of its cars on a steep incline. There was evidence that the cable had been weakened by use and exposure, that it had once before broken, and that on the morning of the accident it had been hastily repaired and used without testing its strength. This evidence was clearly sufficient to take the case to the jury, and we see no error in the manner in which it was submitted or in the rulings upon the offers of testimony. The fourth assignment of error, to which the appellant’s argument is mainly directed, has no foundation on which to stand. The question objected to and allowed was intended to show a declaration by a director of the company that the manner in which the cars were operated was dangerous. The question however was not insisted upon, and was not answered. The [627] •witness’s testimony was confined to what he had seen, the breaking of the cable on a previous occasion, and there is nothing in the record to which the argument applies. The witness Hall, who was not allowed to say whether he had done his work properly, had not repaired or adjusted the cable. He had assisted in the construction of some of the appliances. No complaint was made of his work, it was in no manner connected with the breaking of the cable, and whether it was well done was unimportant. There was no error in admitting the testimony of Westenberger to show that before the accident he had called the attention of a director of the company to the weakened condition of the cable, and had pointed out to him the apparent defects, or in overruling the question asked this witness on cross-examination whether the splicing of the cable had been well done. He had not seen it done, and it did not appear that he had examined it after it was done, or had any knowledge of the subject. It is unnecessary to refer in detail to the numerous assignments of error. The negligence alleged was not in the plan of operation, but in allowing the cable to become torn and detached from the car. The plaintiff’s proof was that the cable was defective, that the defects were apparent and known to the executive officers of the company; that it had broken before, and on the morning of the accident had been spliced and attached to a heavily loaded car and put in use without a test and without notice to persons passing on the highway. It was not an answer to this to say that an improved method for controlling the movements of the cars had been adopted and skillful mechanics employed to construct the appliances. Whether there was reason to anticipate such an accident as that which resulted in the plaintiff’s injury was for the jury. The learned judge properly declined to give binding instructions on the subject, and submitted it in a manner of which the defendant has no just cause of complaint. The judgment is affirmed.