Rosenstiel v. Pittsburg Railways Co.

Citations

• 230 Pa. 273
• 79 A. 556
• 1911 Pa. LEXIS 602

Syllabus

<p>Negligence — Street railways — Incompetency of motorman — ■Notice— Dispatcher.</p> <p>1. In an action against a street railway company to recover damages for death, where the principal issue concerns the alleged incompetency of a motorman and notice of that fact to the company, the case is for the jury where the plaintiff produces proof of the motorman’s general reputation for incompetency, although the alleged incompetency arose after his lawful employment, and although the evidence did not tend to prove a bad reputation for the precise kind of negligence which caused the injury in question.</p> <p>2. Incompetency of a fellow employee must be established by evidence of general reputation, and cannot be proved by specific acts.</p> <p>3. It is not necessary to prove that the person whose incompetency is at issue had a bad general reputation for the precise character of negligence which caused the injury. Proof of habitual recklessness and carelessness in the work he is employed to do is sufficient.</p> <p>4. In a damage suit against a street railway company where the principal issue is the incompetency of the motorman and knowledge thereof on the part of the company, the action of the court in submitting to the jury, as evidence from which the fact of notice might be found, the narration of a statement concerning the incompetency of the motorman made by the witness to a “dispatcher” of the company on the occasion of a car running off the track, constitutes reversible error, if there is no evidence that the dispatcher had authority to employ or discharge.</p> <p>Evidence — Error in admission — Instruction to disregard.</p> <p>5. Where evidence which tends to prejudice the minds of the jurors has been improperly received, the error is not cured by an instruction to disregard, and the action of the court in not only failing to withdraw such objectionable testimony, but in submitting it to the jury and telling them to consider it in determining the issues, constitute