Erie & W. V. R. v. Smith

Citations

• 125 Pa. 259
• 17 A. 443
• 1889 Pa. LEXIS 712

Syllabus

<p>1. Tn au action against a railroad company to recover damages for the death of an employee resulting from an accident due to the alleged negligence of the company, evidence, on the part of the plaintiff, of declarations as to defects in the engine, made by officers of the company after the accident, and not in contradiction of prior testimony of such officers, are not admissible.</p> <p>2. Where evidence lias been improperly received, which tends to prejudice the minds of the jury, and motions made to strike it out at or before the close of the testimony are refused, a direction to the jury in the general charge to disregard fhe evidence, and a withdrawal of it from their consideration, comes too late and does not cure the error of admitting it.</p> <p>(a) The accident in this ease resulted from tlie engine leaving the track while rounding a curve. Evidence was introduced to show the defective construction of the track: certain witnesses, who examined the track 33 days after the accident, testified to slight variations in .the degrees and lines of the curves, and others, that the ballasting of the track was defective. There was no evidence, however, that either of these defects caused the accident.</p> <p>3. The evidence referred to did not establish such negligence on the part of the company as warranted a recovery against it for the death of an employee: had the person killed been a passenger, the burden would have been upon the company to rebut the presumption of negligence raised by the evidence, hut an employee must affirmatively prove such negligence as violates the special and limited duty of his employer.</p>