Martin v. Baden Borough

Opinion by Mr. Justice Stewabt, We have here six assignments of error. We shall dispose of them somewhat out of the order in which they are presented. The second complains that the court refused to instruct the jury that, if they believed that the property of plaintiff, by reason of the improvement of State street, had been benefited over and above the damage sustained, they could find in favor of the defendant and against the plaintiff to the limited extent stated in the proposition. It is enough to say with respect to this, that the record does not show that any such instruction was asked for, or, if asked for and refused, that exception was taken. The fourth complains that the court should have instructed the jury, that when the plaintiff gave her consent to the borough to have her mill raised so as to conform to the new grade of the street, she thereby assumed the risk of any injuries to her mill. It is enough to say as to this, that the learned judge was not asked to so instruct the jury. We may venture to add that he could not have done so had he been requested. The third, fifth and sixth assignments relate to the admission and [455] rejection of certain testimony. These three assignments are in plain disregard of rule 28, and cannot therefore be considered. All the assignments above referred to are dismissed. The first assignment charges error in admitting the contract between the borough and a certain street railway company, wherein certain franchises are conferred upon the railway company and certain obligations imposed. The assignment barely escapes a like condemnation with the others. When it is recalled that this was an issue to determine what amount of damages the plaintiff had sustained by reason of the change of grade of a public street, it is impossible to see any relevancy this contract has to the issue being tried. It was admitted on the ground, that while the change of grade was a municipal improvement, undertaken by the borough, yet the railway company under its contract with the borough had obligated itself to do the work, and did do it, as the agent of the borough. What possible difference could it make if the borough instead of doing the work itself employed another agency, o.r, how could such fact be relevant to the issue tried? Had the borough engaged individual contractors to do this wo.rk, it would certainly not have been thought necessary or important to introduce such fact in an action against the borough for damages. The complaint is that the evidence was offered with a view of having the railroad company considered the real defendant; that having been admitted, the evidence did so operate, with the result that the verdict was larger than it otherwise would have been. We have no way of determining how this is, but the fact that the viewers awarded nothing to the plaintiff, and on appeal she recovered a verdict at the hands of the jury of more than $3,000, lends some support at least to the contention of the defendant. We express no opinion as to the merit of the plaintiff’s claim, but we do take occasion to condemn the introduction into a case of this kind of anything so foreign to the issue as this evidence was, especially where it can' be employed as an appeal to prejudice. It is evident [456] from the following excerpt from the charge of the court, that to the mind of the learned judge the evidence was calculated to have this very effect. “It seems that the work upon the ground was performed by the Beaver Valley Traction Company as the agent of the borough of Baden, and this ordinance was offered for the mere purpose, and you can consider it for no other purpose, that while the work was done by the street railway company, the company really did it as the agent and representative of the borough of Baden, and that any liability to property owners growing out of a change of grade of these streets, would have to be borne by the borough of Baden; so that you will give yourselves no concern, whatsoever, so far as the traction company is concerned, except merely that the work was done by it as the agent of the borough; for the borough will be responsible, liable, for whatever amount of damages property owners sustained in and along the highway by reason of the work which the traction company did in grading and doing this work upon the streets.” It is to be observed that as explicit as this instruction is, it fails in the very important matter of final and ultimate liability, and leaves the jury free to conjecture that there could be recovery over against the railway company for whatever damages might be assessed against the borough. Apart from this, the evidence being inadmissible and calculated to affect the minds of the jury, as is apparent from the charge of the court, the only way to correct the error of its admission was to order it to be wholly withdrawn. The instruction to disregard it came too late: Erie & W. V. R. Co. v. Smith, 125 Pa. 259. As the case is exhibited by the record we can only say that the evidence was improperly admitted,, and that the instruction in regard to it was insufficient to neutralize any prejudicial effect it was calculated to produce. We are not sure that prejudice did not result to the defendant in consequence, and we sustain this assignment of error. The judgment is reversed and a venire facias de novo is awarded.