Collins v. Philadelphia & Reading Railway Co. , 63 Pa. Super. 371 ( 1916 )

Per Curiam,

The plaintiff and John Vesey, employees of the defendant, were engaged in loading a car at the defendant’s freight station. There was a hole in the platform at the car door, 3 to 4 inches wide and 8 to 10 inches long, which had existed for two weeks. This was not a necessary or convenient part of the structure, but it is fairly. inferable from the evidence that it was a defect caused by wear or decay, and there is direct evidence, “that this defect was known to the defendant’s foreman in charge of the men who were employed thereabouts, and to the plaintiff and his fellow workmen; that the only means to avoid danger from, the hole was a sheet of loose iron thrown over it and not secured or made fast in any manner; that this cover was used by order of iíhe defendant’s foreman; that at the time of the accident the sheet of iron happened not to be over the hole.” The foregoing quotation taken from the opinión of Justice Yon Moschzisker, in reviewing the first trial of the case (244 Pa. 210), correctly describes tbe means of guarding tbe bole, as shown in this trial. Yesey was pulling a two-wheel truck upon which was a crate of furniture, weighing about 500 pounds, and approximately 6 feet long and 4 feet wide, and tbe plaintiff was walking beside tbe truck, steadying tbe crate. When they reached tbe car door and Yesey turned to pull tbe truck up an incline into the car tbe crate was east off tbe truck, fell on tbe plaintiff and broke bis leg.

1. As to tbe allegation of defendant’s negligence in permitting tbe defect, it is sufficient to quote again from Justice Yon Moschzisker’s opinion: “If tbe defendant permitted a bole with only a makeshift cover, such as here described, to exist upon its platform, where men were constantly employed, presumably with attention fixed upon their several duties, it clearly could be found guilty of not maintaining a reasonably safe place £o work; hence, tbe nonsuit cannot be justified upon tbe ground of lack of proof of negligence on its part.”

2. Tbe next question is as to tbe causal connection between this clearly proved negligence and tbe injury to tbe plaintiff; it being alleged in tbe statement of claim that tbe injury was caused by one of tbe wheels of tbe truck going into tbe bole in tbe platform. It is urged by appellants’ counsel that- this fact was not proved. Upon this subject tbe plaintiff testified: “I bad. been steadying a crate of furniture and Mr. Yesey was pulling tbe truck, and we were going along tbe floor, and tbe wheel of tbe truck went in the bole in tbe floor and turned this crate of furniture on top of me and broke my ankle and fractured my instep.” Being asked as to tbe shape of tbe bole be answered: “It runs straight along tbe floor, at tbe car door, where we bad to turn to go into tbe car, and tbe wheel went into it and turned it on top of me.” This statement as to tbe wheel going into tbe bole was repeated several times by tbe plaintiff in bis examination in chief and was steadfastly adhered to by him throughout a long and rigorous cross-examination. Manifestly, the testimony cannot be rejected as legally insufficient because of ambiguity, dimness of recollection or lack of positiveness. True, the plaintiff admitted that he did not see the wheel go into the hole, and could not see it because of the overhanging crate; nevertheless he reiterated his statement that it did go in. In general, that which a witness represents as his knowledge must be an impression derived from the exercise of his own senses, not from the reports of others — -in other wordsj must be founded on personal observation: Wigmore on Evidence, Sec. 657. This general principle was not contravened by the reception and submission to the jury of the testimony under consideration. It was not founded on the reports of others, but on the personal observation of the witness. And although he did not see every movement, which resulted in the overturning of the crate, and his knowledge was not of that absolute nature which precludes even the remotest possibility of mistake, yet when the position in which he was placed, his knowledge of the location of the hole and- of the position and movement of the truck, and the sensations he experienced at the very time are considered, it would be refinement almost to the limit of absurdity to declare as matter of law that he was not qualified to testify that the wheel went into the hole. The credence and weight to be accorded to his testimony were matters for the jury’s consideration and determination; the court would have exceeded its province if it had withdrawn the testimony from its consideration upon the ground that what the witness presented as his knowledge lacked adequate data as its basis: See Wigmore on Evidence, Sec. 658 and 659. Moreover the testimony was admitted without objection and the defendant made no motion to strike it out.

The sufficiency of the testimony to establish the fact which is at the foundation of the plaintiff’s case is further attacked upon the ground that it presented two other possible canses of the accident, which were not attributable to the defendant’s negligence; and in view of this uncertainty, it is argued, verdict should have been directed in its favor. The court is not entitled to submit evidence which will merely enable a jury to “guess” at a fact in favor of a party who is bound to prove it: Ely v. Pittsburgh, Etc., Railway, 158 Pa. 233; Price v. Lehigh Valley Railroad Company, 202 Pa. 176; Patton v. Texas, Etc., Railroad Co., 179 U. S. 658. But as already indicated the testimony of the plaintiff furnished basis for more than a mere guess, conjecture or suspicion that the immediate cause of the crate toppling over on him-was the wheel going into the hole. Nor is it perceived that the force of this testimony was nullified, or even detracted from, by the plaintiff’s admission on cross-examination that one end of the overhanging crate struck the station wall. His whole answer when questioned on this subject was, “Struck the wall, and as soon as the wheels of the truck Avent down it turned on top of me.” This testimony does not constitute an admission that the striking of the wall was or might have been the sole efficient cause of the injury; the utmost that can be claimed for it is that it furnished basis for conjecture that if that had not happened the wheel would not have gone into the hole. Even if the jury took that view, a finding that the defendant’s negligence in permitting such a defect to be in the platform at that place was the proximate cause was justifiable.

Stress is laid on the admission of Yesey on cross-examination that the crate could have been jolted off by his starting on a run to pull the truck up the incline. It is to be observed, however, that Yesey did not undertake to say that that was the cause of the accident; and while he admitted that he could not say whether the wheel went into the hole or not, he did say “there was a hole in the floor right where the crate fell off,” and that he felt the jar which he thus described, “Just jarring my hand, it leaned heavier on the right hand than the other side, like going down.” To the extent that Ms testimony went it was corroborative of that of the plaintiff; and even if it had been contradictory of it, the court would have been bound to submit the case to the jury upon the principle clearly enunciated in Kohler v. Pennsylvania Railroad Company, 135 Pa. 346, and recognized and applied in many later cases, that if a plaintiff’s testimony makes out a clear cáse, the contradictory testimony of another witness, though called by the plaintiff, will not as matter of law destroy it.

3. The remaining questions argued are as to the plaintiff’s contributory negligence and his assumption of risk. These were raised and considered on the former appeal and were decided adversely to the appellant’s contention as follows: “There was no evidence which would justify a nonsuit upon the ground that contributory negligence had been plainly shown, e. g., that at the time of the accident either of the men employed in loading the car performed his work in an unusual or careless manner, or that they must have known the cover was off, or that the truck was about to slip into the hole; and the immediate danger to the plaintiff was not so obvious and imminent that it could be said as a matter of law that he had assumed the risk of the possibility of the hole becoming uncovered and the wheel of the truck slipping into it.”-

Notwithstanding the contention of appellant’s counsel, we are not convinced that the case as presented on the second trial differs so materially from the case as stated in the opinion of the Supreme Court as to warrant a different legal conclusion. On this trial, as on the first trial, the plaintiff’s knowledge of the existence of the hole and of the insecure means of guarding it was shown, but it does not more clearly appear than it did on the first trial that he knew it was uncovered at the very time he and his fellow workman undertook to haul the truck to the car door.

Without further elaboration we conclude that the issues of fact involved in the case were properly submitted to the jury. There is no question raised as to the manner of submission.-

The assignments of error are overruled and the judgment is affirmed.