Fearn v. West Jersey Ferry Co. , 143 Pa. 122 ( 1891 )

Opinion,

Mr. Justice McCollum:

The questions which confront us in this case are, first, whether the deposition of John Fearn was admissible; and second, whether there was error in the refusal to take off the nonsuit.

The deposition was taken in a suit in the Circuit, Court of the United States, in which Mary Ann Fearn was the plaintiff and the West Jersey Ferry Company was the defendant. In -that action, the plaintiff clainied damages for personal injuries caused by the alleged negligence of the defendant company. In this case, the administratrix of John Fearn claims that he received an injury through the negligence of the same company, which caused his death. It is contended by the appellant that the injuries for which these suits were brought were received at the same time and place, and were attributable to the same cause, to wit, the neglect of the defendant company to keep its boat in a reasonably safe condition for the ingress and egress of its passengers. Assuming that the claim of the appellant is correct, it does not follow that a deposition taken in one action is admissible as evidence in the other. The actions are not between the same parties, although we have the same defendant in each. The fact that the plaintiff in the first action was the wife of the plaintiff in this action, or that she is now his widow and administratrix, can make no difference in the rule which allows testimony taken in one action to be given in evidence on the trial of another which involves the same subject matter and is between the same parties or their privies. The joinder of the husband in the former suit was merely formal, and it did not give him control of or an interest in it. It was the wife’s claim that was litigated; the judgment was obtained in her right, and it was exclusively hers. Identity of subject matter, in whole or in part, and identity of parties in interest must unite, to render a deposition in one case admissible in another. This is the doctrine of our cases, of the act of 1814, and of the act of 1887 which contains the last legislative deliverance on this subject: Haupt v. Henninger, 37 Pa. 138; Harger v. Thomas, 44 Pa. 128; act of March 28, 1814, 6 Sm. L. 208; act of May 23, 1887, P. L. 158. The appellant’s offer was not within this rule, and the deposition was properly rejected.

In considering the question raised by the second specification of error, it must be borne in mind that there is no evidence in the case which suggests any defect in the construction of the boat, and that the sole complaint is that its deck was slippery. This condition and its cause are adequately described in the appellant’s testimony. It appears that it commenced snowing about the time Fearn left the Pennsylvania station for the ferry, and that it was snowing when he entered the boat. As a result of the brief storm, then in progress, the deck was covered with a thin coating of snow, and in crossing it to reach the cabin he slipped and fell. Nearly five years after this occurrence, alleging that he was injured by his fall and that it was caused by the negligence of the defendant company, he brought this action. After his death his administratrix was substituted as plaintiff, and on the trial the evidence of his widow and son was relied on to sustain the charge of negligence. This developed the situation at the time of the accident, the commencement and progress of the snow storm, and the condition of the boat as affected by it, substantially as we have stated.

Assuming, as the appellant contends, that the cause of the accident was the slippery condition of the deck, it is obvious that this condition was produced by the snow falling upon it. It is not pretended that it was the duty or within the power of the company to prevent the snow falling on the deck of its boat, but it is claimed that its obligation to its passengers required it to immediately remove the snow and restore the condition which existed before the storm. It is well known that rain or snow, falling upon the sidewalks of a town or city, the steps and platforms of railway cars, and the decks of ferryboats, will render them slippery and consequently more difficult to walk upon. But it is not practicable to absolutely prevent this condition while the rain or snow is falling, and the mere existence of it during the storm which causes it, raises no presumption of negligence on the part of the municipality, the railway, or ferry companjn In our case, it commenced snowing but a few minutes before the accident, and was snowing at the time of it. There was no accumulation of ice or snow on the deck, formed or left there from a prior rain- or snow-fall. There was not a spark of evidence from which an inference' could be drawn that there was any ice on the deck where Fearn crossed it. Where the snow was displaced by his fall, the deck had a slippery appearance, caused by the moisture from the snow upon it. It is shown by the testimony and the photographs produced by the appellant on the trial, that it was the same appearance presented by the decks of ferry boats of like construction, in a rain storm, or when wet from any cause. It was therefore incumbent upon the appellant to prove an omission or violation of a duty which the company owed to him. The cause of the accident was known as well to the appellant as to the company. In such case the presumption of negligence arising from the mere fact that a passenger was injured while on the appellant’s boat has no application: Del. etc. R. Co. v. Napheys, 90 Pa. 135; Hayman v. Railroad Co., 118 Pa. 508, and Farley v. Traction Co., 132 Pa. 58. As the appellant failed to show any omission or violation of duty by the company, in connection witb tbe cause of tbe accident, we think tbe nonsuit was properly ordered. We find nothing in Neslie v. Railway Co., 113 Pa. 300, which is in conflict with this conclusion. In that case, there was ice on the step of the car caused by a storm the day before, and the ice “ had been suffered to remain on tbe step from the previous day,” and it was held that, “ whether it remained there for such time and in such form as to establish the negligence of the defendant,” was a question for the jury. Here, there was only a slippery condition of the deck, caused by a storm in progress when the accident occurred.

Judgment affirmed.