Anderson v. Oliver , 138 Pa. 156 ( 1890 )

OPINION,

Mr. Chief Justice Paxson :

The court below entered a judgment of nonsuit, and the only assignment of error is to the refusal to take it off. Objection is made that there was no exception to the refusal. In Bondz v.' Pennsylvania Co., ante, 153, we held that where, in case of a nonsuit, there is no exception taken to the refusal to take it off, the evidence is not before us and we cannot review the action of the court below upon any question arising upon the evidence.

The ease in hand differs from Bondz v. Pennsylvania Co. in this, that it appears by the docket entries that the stenographer was directed by the court below to file the notes of trial. It was claimed that this brought the case within the ruling in Northumberland Co. Bank v. Eyer, 58 Pa. 97, and that the notes thus filed became a part of the record for all purposes. An examination of that case, however, discloses the fact that it was decided under the act of February 24, 1806, § 25, 4 Sm. L. 276, by which it is made the duty of the presidents of the courts of Common Pleas, if either party or their counsel require it, to reduce their opinions in any cause to writing, and to file the same of record. Under this act it has been held that opinions thus filed, by the positive command of the law, are of the body of the record, and that the law intends that the judge shall place upon the record also such facts as are necessary to explain his opinion: Downing v. Baldwin, 1 S. & R. 298; Munderbach v. Lutz, 14 S. & R. 125. It is very evident this case does not come within the act above referred to.

There was no charge filed here; there was none delivered. The plaintiff was nonsuited, and the jury had nothing to do with the case. The filing of the notes of evidence did not bring them into the body of the record, because they were not filed in obedience to any law. The mere direction of the trial judge to have a paper filed does not make it a part of the record, unless the law declares that it shall become so upon such filing. In this case, the filing of the notes was proper enough, in order to have them convenient for use upon a motion for a new trial, but they are of no use here, because they are here irregularly. We have looked into them, however, and are of opinion that the plaintiff has not suffered from the omission.

At the time the plaintiff received the injury of which he complains, he was employed at defendants’ furnace, in the work of unloading ore and coke from railroad cars run back by the railroad companies into the stock-house of the furnace upon trestles with a slightly descending grade. It was alleged that the injury was caused by a defective brake on one of the cars. The running forward and unloading of the cars was done by laborers at the furnace, all of whom were under the control of the labor boss. If the accident was the result of the negligence of any of the laborers in handling the cars, the plaintiff cannot recover, because they were his co-employees. If it was owing to a defective brake, the defendants are not responsible, because they did not own the cars, and had no control over them further than to unload them. They belonged to the railroad company. In either view of the case, the plaintiff cannot recover.

Judgment affirmed.