Matteson v. New York Central & Hudson River Railroad , 218 Pa. 527 ( 1907 )

Opinion by

Mr. Justice Stewart,

The question here at issue was the defendant’s liability to respond in damages for the flooding of plaintiff’s land, claimed by the plaintiff to have resulted from the manner in which defendant company had constructed the foundation for its bridge over the Cowanesque river. The case presents no peculiar features, and does not call for a general review. It is enough to indicate the specific errors committed on the trial which require a reversal of the judgment.

W. J. Ballou, a witness called by plaintiff, testified as to how the plaintiff’s land was affected by the flooding, which he said was occasioned by the defendant’s structure, and gave his estimate of the damage. He described how it had been washed, and the size and extent of the gullies and depressions which resulted. On cross-examination it was proposed to ask this witness whether, before the building of the bridge complained of, the land was not subject to overflow, and whether there were not at that time depressions on it and ponds four or five feet deep. The offer was excluded on the ground that it was an attempt to introduce defendant’s case by way of cross-examination. However much it was in line with what defendant proposed to prove subsequently by way of defense, it was none the less entirely competent by way of cross-examination; and it was error to exclude it.

The plaintiff was permitted under objection to testify to certain admissions by the division superintendent of the defendant company at a later day, as to the cause and extent of the damage done to the land. This was not by way of contradiction, but as substantive testimony. “ The rule is well settled, ” says Sharswood, J., in Penna. Railroad Company v. Books, 57 Pa. 339, “that what an agent says while acting within the scope of his authority, is admissible against his principal, as part of the res gestae, but not statements or representations made by him at any other time. ”

Like error was committed in allowing another witness for plaintiff, under objection, to testify to certain directions given by the defendant’s supervisor of bridge work, for the removal of the piles which it is claimed caused the obstruction in the stream and the flooding of plaintiff’s land. While the avowed purpose of the offer was to show admission by the company that the piles were the property of the company, a matter not in dispute, the inference the jury would most likely have derived from it, would have been an implied admission of negligence in having the piles where they had been placed. The evidence was inadmissible for such purpose. Repairs made after an accident do not in themselves give rise to a presumption of negligence: Baran v. Reading Iron Co., 202 Pa. 274. The evidence should have been excluded. The eleventh, twelfth and thirteenth assignments of error are sustained.

Judgment reversed, and a venire facias de novo awarded.