Pennsylvania. Supreme Court.

Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) online

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a trench cut across the highway ; for that would make the author
of a public nuisance answer for a private wrong which he did not
commit; yet if the owner were not to be affected by the carrier's
negligence, such an action might be maintained on the right of
property. So far has the owner's responsibility been carried in
every species of bailment, that, where beasts in the custody of
another who does not appear to have been his servant, were suffered
to commit a trespass, the owner of them was held to answer for it.
Viner, Trespass, B. pi. 1. The case put of injury to a passenger
from a collision of stage-coaches, wants the essential ingredient of
bailment to complete its analogy to the present; but I am not pre-
pared to admit that even he could have an action for mutual negli-
gence against any one but him to whose care he had committed his
person. A carrier is liable to his employer at all events; and to

|| ' 2 Pick. 621.||


[Simpson v. Hand.]

make his associate in misconduct answerable for all the consequences
of it, would make one wrongdoer respond, in ease of another, for
an injury that both had committed. It is more just that the carrier
should answer to his employer, rather than one in whom the
employer had reposed no confidence. What remains, then, is to
inquire whether there was evidence, in the case *before us, r*q9q
of mutual negligence in the conduct of those who had the *
vessels in charge.

That there was carelessness on board the William Henry was
proved .by her own crew. The pilot testified explicitly that the
accident would not have happened if the mate, who was on the look-
out, had done what was palpably his duty. The Thorn was per-
ceived when she was at the distance of nearly three hundred
yards; yet, though he called out to starboard the helm, the order
was neither responded to nor repeated. He said further, that the
mate gave him no intimation of the Thorn's presence till she was
struck ; and that had he done so while she was distant twice the
length of his own vessel, he could have cleared her. The mate
himself says that he gave no intimation to the pilot at all ; arid
that his call was to the man who was supposed to have the Thorn
in charge. It was, then, gross negligence in him to recur to a
measure so uncertain, in exclusion of that which was the most nat-
ural, easy and proper. To avoid every chance of accident from
the probable drowiness of the ancbor-watch, he ought to have
given the order to the steersman of his own vessel, known to be on
the alert. Even had it been certain that the anchor-watch was
equally so, he was bound to know that a vessel at anchor could not
be so readily got out of the way, as it could be cleared by another
in motion ; and it was his duty to take his measures accordingly.
Such was the evidence of negligence on board the William Henry ;
and what was the evidence of it or board the Thorn ?

There were three points of fact to which the attention of the
jury was at first directed, but from which it was unfortunately
withdrawn in the sequel. The Thorn's position in relation to the
channel; the burning of a signal light aboard of her; and the
conduct of her anchor-watch. As regards two of them, her posi-
tion and light, there was a conflict of evidence. Four, of the six
persons who composed her crew, testified that she was anchored
out of the thoroughfare or customary track; that the mate set an
anchor-watch ; and that he placed a signal lantern in the peak
halliards. This was before the crew retired to their berths ; but
the point of time material to the question was the instant of the
collision, and what was the state of things then ? The plaintiffs'
witnesses asserted that the light was burning in its place when they
came upon deck, a few moments after the shock ; while those on
the adverse part, including one of the Thorn's crew, testified that


323 SUPREME COURT \_Dec. Term,

[Simpson v. Hand.]

no such thing was visible, and that they would have seen it had it
been there. Again, the defendants' witnesses testify that the
Thorn was lying in the very middle of the channel ; a fact ren-
dered, probable by the depth of the water ; and if she were lying
there without a light to mark her position and presence, she had
not used those precautions which prudence required. It was,
indeed, ruled in Carsly v. White, 21 Pick. 254, that there is % no
*3941 ru ^ e ^ P os ^^ ve prescription like the ordinance of Oleron,
J or *any general usage, which requires a light to be con-
stantly exhibited in the night time by a vessel at anchor in a har-
bor ; and that whether the omission of it be negligence to bar an
action for a collision, must depend upon the impression made by
the circumstances on the minds of the jury. A vessel is doubtless
not bound to show a light when she is moored out of harm's way ;
but vessels run at all hours on the Delaware ; and it was proved to
be a custom of the river to set a light in nights of unusual dark-
ness ; and though there is no positive law to inforce it, the neglect
of it must give a false confidence to an approaching vessel which
she would not feel if there was no custom at all. In such circum-
stances, a want of conformity to the custom is an allurement to
disaster. Indeed, the hoisting of a light is a precaution so im-
periously demanded by prudence, that I know not how the omission
of it could be qualified by circumstances, any more than could the
leaving of a crate of china in the track of a railroad car ; or how
it could be considered otherwise than as negligence per se.

Betwixt the stories of those who spoke of the conduct of the
anchor-watch, there can scarce be said to have been a difference.
The pilot testified that he ran forward at the time of the collision,
and that no person was then on the Thorn's deck. Evans, the
passenger, said the same; and he, as well as the mate, declared
that the first man they saw on board of her, was in the act of
coming out of the cabin. McCracken, who was one of the Thorn's
crew, deposed that neither light nor watch had been set ; that the
crew at the time of the disaster, were asleep in their berths; that
he and Joe, the reputed anchor- watch, slept together in the fore-
castle ; and that being roused by the jar, they got on deck through
the scuttle, where they found that no one had preceded them. In
addition, no one pretended that an answer was returned when the
Thorn was hailed. On the other side, the master of the Thorn
testified that when he came up, he found Joe on deck ; the mate
said the first man he saw on deck was Joe ; and Hess, the seaman,
said that he found Joe on deck forward. Now this may have befcn
perfectly true, and yet Joe may have been asleep when his services
were wanted ; nor is it at all inconsistent with the testimony on
the other side. The only witness who pretended to say where he
was at the time of the collision, said that he was not at his station ;


[Simpson c. Hand.]

and Joe himself was not called to contradict him. Now, though
the rule is that a vessel in motion is bound to shape its course so
as to pass another at rest, if need be, without its co-operation, it
seems to be the custom of the Delaware for the crew of a vessel,
at anchor in the stream, to give such a shear as may prevent a
vessel in the act of passing, from running foul of it in case of
accident. Had that been done in this instance, the disaster would
have been escaped ; and though the want of co-operation did not
justify the mate's negligence in not taking his measures so as not
to need it, *it would fix an imputation of negligence on the r*q9c
Thorn to show her anchor-watch was not at his station in L
time to afford it.

Instead, then, of being told that, notwithstanding the Thorn may
have been deficient in any, or all, of the preceding particulars, the
plaintiffs would be entitled to recover if she was perceived on board
of the William Henry in time to be avoided, the jury ought to
have been told that if she was moored in the channel, without a
light burning at the time ; or that if her watch was not present,
and did what is customary on such occasions, her people were
obnoxious to such a charge of negligence as would bar the action ;
and that the burthen of proof lay on the plaintiffs.

New trial granted.

Cited by counsel, 9 W. & S. 72 ; 9 Barr 149 ; 2 Jones 84 ; 8 Harris 501 ;
9 Id. 208 ; 12 Id. 467 ; 4 Wright 405 ; 6 P. F. Smith 207.

Cited by the court, 5 W. & S. 525 ; 7 Harris 304 ; and commented on and
followed. 10 Wright 163.

See, also, 6 Casey 460 ; 9 Id. 323.

|| For an injury resulting from mutual negligence of plaintiff and defend-
ant, no action lies, for the damage cannot be apportioned : Stiles r. Geesey,
21 Smith 439. If the plaintiff's negligence only remotely contributed to the
injury, he is not barred : Pass. Ry. Co. v. Boudrou, 11 Norris 475 ; so if it
only swelled the damage : Gould . McKenna, 5 Id. 297.

The plaintiff must show a prima facie cause of action arising exclusively
from the negligence of the defendant, before the latter need answer : Waters
v. Wing, 9 Smith 211. After such cause of action is shown, the burden if
on the defendant to establish negligence on the part of the plaintiff: Penna.
Co. v. Bently, 16 Id. 30. Negligence of a plaintiff contributing to the
injury complained of, is matter of defence, and ordinarily the burden of
proving it is on the defendant : Mallory . Griffey, 4 Norris 275 ; Brown v.
Gilmore, 11 Id. 40.

If a passenger on a carrier vehicle be injured by a collision between carrier
and a third person, and the two latter were mutually negligent, the carrier
only must respond. If the carrier's negligence did not directly contribute,
and the third party's negligence was the proximate cause, then he must
respond: Lockhart . Leichtenthaler, 10 Wr. 151 ; Ry. v. Boyer, 1 Out. 91 ;
Forks v. King, 2 W. N. C. 653 ; but see Mann v. Weiand, 4 Id. 6.||









The Southwark Insurance Company against Knight.


1. A party who offers in evidence a deposition taken on his behalf, must
read the whole, and cannot select portions and omit others, on the ground
that the parts omitted are properly rebutting evidence.

6. And if he be permitted by the court to read portions only of a deposi-
tion on this ground, the irregularity is not cured by an offer made by his
counsel, in summing up, to read the parts which had been omitted; espe-
cially if, after objection by the counsel on the other side, the offer is with-

THIS case came before the court on a writ of error to the District
Court for the City and County of Philadelphia.

In the court below, Charles J. Knight brought an action of
covenant against The Southwark Fire Insurance Company, of the
county of Philadelphia, upon a policy of insurance executed by the

*OOQ-| *The cause came on for trial before Pettit (President),

- on the 6th of May 1840, when the plaintiff having given

certain testimony, offered to read in evidence certain parts of

the deposition of Phineas D. Crosby; to wit, those parts of


[Southwark Ins. Co. v. Knight.]

the deposition only which were included in brackets ; and to reserve
the remaining parts of the deposition for use as rebutting evidence.
The counsel for the defendants objected to the reading of any
portion of the deposition unless the whole was read ; but the court
overruled the objection, and permitted the plaintiffs counsel to read
such portions of the deposition as are included in brackets, and to
reserve any right he might have to offer the remaining parts of the
deposition as rebutting evidence; the learned judge remarking that
he would not anticipate what would be the decision should such
offer be made. To which decision the counsel for the defendants
excepted. The plaintiff's counsel then read such portions of the
deposition as are included in brackets, as follows, to wit :

[" Phineas D. Crosby, a witness produced by the plaintiff, being
duly sworn, doth depose and say, I shall be twenty-two years of
age in November next ; and reside in Danbury, Connecticut. I
was book-keeper and clerk for Knight, and was well acquainted
with the clothing business generally. I was with Knight about
eight months, ending about September, 1836. During the time I
was there, I should think three- fourths of the goods were manufac-
tured by himself; I mean three- fourths of the whole stock at the
time when he purchased the goods over three-fourths were unmanu-
factured ; and he manufactured that which was not manufactured,
which had been cut in New York. I should think it would cost
about fifty per cent, to manufacture clothing generally,] which does
not show on his books at all. [I should think the profits on his
goods generally were twenty-five per cent.] From the appearance
of the books I should think that they were very irregularly kept
after I left. I should think Mr. Knight was not competent to keep
a set of books regularly. He had a large store and kept a good as-
sortment of clothing. The store was well filled when I left. [He
did not sell a great many goods.] 1 have examined the books of
Mr. Knight thoroughly all through ; and as they appear now, the
invoice of all the goods received by him amounted to $16,716.54,
and the whole amount of sales made by him appears from the books
to have been $9569.04 ; this does not show the amount in the store
by fifty per cent. ; I mean half as much again as I have stated.
[Up to the time that I left, I should think that three-fourths of the
goods were manufactured by Mr. Knight ; after they were thus
manufactured they were worth one-half more,] which does not appear
on the books. So far as I know the entries on the invoice book A,
to page 80, are correct ; and the goods stated were received by Mr.
Knight. [The goods received from New York were not manufac-
tured ; I *mean not made up. I think no goods received by r*onq
Knight were made up ; but he might have received some ; *
very few that were made."]

Cross-examined by F. A. Raybold, Esq. " The money paid for


[Southwark Ins. Co. v. Knight.]

making up the goods does not appear on Knight's books ; we
charged the money ; we gave them orders on Hill & Howe ; we
paid them also."

The plaintiff's counsel then gave certain other depositions in
evidence, and closed his case.

The defendant's counsel then called upon the plaintiff's counsel
to say whether it was intended to give in evidence the books kept
by the plaintiff; to which the plaintiff's counsel replied that the
plaintiff did not intend to give them in evidence as part of the plain-
tiff's case : but that the books were at hand and ready to be pro-
duced for use by the defendants whenever the defendants' counsel
should make his call for them under his notice, which he had given
to the plaintiff to produce them upon the trial.

The defendants' counsel then stated that they offered no evidence;
whereupon under the rule of the court, the counsel for the plaintiff
addressed the jury, and was followed by the counsel for the defend-
ants. In the course of the address of the plaintiff's counsel to the
jury, he offered to read such parts of the deposition of P. D. Crosby,
as had not before been read. The defendants' counsel being asked
by the court if he objected, said that he hoped the defendants'
counsel would not be put to an objection this time. The judge
remarked, that unless an objection were made, the parts of the
deposition now offered might be read ; and that if objection were
made, the court would consider it. The defendants' counsel
thereupon did object. The plaintiff's counsel then said that he did
not press the reading ; and the omitted parts of the deposition
were not read ; no further decision on the subject being made by
the court.

The plaintiff obtained a verdict ; and this writ of error was

The following error was assigned :

" That the court below erred in permitting the counsel for the
plaintiffs below, to read in evidence to the jury parts or abstracts of
the deposition of Phineas D. Crosby."

Mr. Raylold and Mr. Meredith, for the plaintiffs in error.

By a rule of the District Court, if the defendant offers no evi-
dence, the plaintiff's counsel goes on, and the defendant has the
conclusion. Under this rule the defendants went on. The plain-
tiff's offer, if it had been in time, might have sufficed ; but it was
*3301 not ^ a ^ ter the address to the jury had commenced, and the
' defendant's witnesses *were gone away. We alleged that
the books would contradict the witness ; and when what he said as
to the books was left out, our testimony could not be produced.
D'Homergue v. Morgan, 3 Whart. 26, settles the rule that parts of
depositions can't be read. Here the parts read contained mutilated


[Southwark Ing. Co. v. Knight.]

sentences, and even excluded cross-examination, and matters not
rebutting. It is not a matter of discretion with the court, after the
counsel have begun to speak. In Frederick v. Gray, relied upon
on the other side, the witness was brought in by attachment, without
the party being in fault. Here the evidence was in the plaintiff's
hands, to do with it what he pleased. There was no permission given
by the court below the evidence was withdrawn by the plaintiff
after our objection."

Mr. 0. Ingersoll, contra.

The parts omitted were at first reserved for rebutting evidence,
which they certainly were in their nature. The defendant gave
no evidence ; so the plaintiff could not use them as rebutting ; but
he did all he could by offering to read them afterwards. This was
within the discretion of the court. Frederick v. Gray, 10 S. & R.
182. The parts omitted were afterwards excluded on the defend-
ants' objection. They gave no evidence, and therefore could not
have dismissed witnesses. In D'Homergue v. Morgan, evidence
was admitted after the case was closed. Here the parts left out
were irrelevant.

The opinion of the court was delivered by

SERGEANT, J. It was certainly error in the court below to
permit the plaintiff to select portions of the depositions of a wit-
ness taken by himself, to be read in evidence on the trial, and to
omit other parts of the same deposition. It seems to be the same
thing as striking out parts of the examination of a witness sworn
in the cause at the bar, at the request of the party who called and
examined him. This could not be permitted. The party who ex-
amines a witness must be considered as presenting the whole as
equally authentic, and is estopped from denying the competency of
any part of his evidence. He cannot even discredit his own wit-
ness, though he may prove the facts to be otherwise than as stated
by him. Stockton v. Demuth, 7 Watts 39. l When a deposition
has been taken, the party, therefore, who offers it, must read the
whole. If parts of it be manifestly irrelevant, they may, on that
ground, be omitted, under the direction of the court : that how-
ever, is not the privilege of the party, but the exercise of a duty
by the court, for the despatch of business, and saving of time and

But it is contended that the plaintiffs, offered, afterwards, in the
summing up, to read the parts of the deposition which had been
*struck out, and that the defendant's objection to it cured r#ooi
the previous irregularity. I do not, however, think so. *-

1 See 6 W. & S. 288.

331 SUPREME COURT [March Term,

[Southwark Ins. Co. v. Knight.]

The time when the offer was made might have exposed the defend-
ant to difficulty and danger from the absence of his witnesses, and
the course of defence he had been obliged to adopt. Besides, the
plaintiff, after the defendant's objection, withdrew his offer, by
which the matter was left in statu quo. Had the plaintiff persisted
in his offer, the court must have admitted or rejected it ; and if
they had rejected it, (which it is very possible they might have
done), the defendant could have rested, as he does now, on his
original bill of exceptions.

For these reasons we think the judgment must be reversed, and
a venire facias de novo be awarded.

Judgment reversed, and venire de novo awarded. -

Cited by the court, 4 W. & S. 175 ; 2 Jones 32; 3 P. F. Smith 494.
|| If a deposition he taken by one party, it is competent for the other to
read such portions as he selects: Calhoun v. Hays, 8 W. & S. 127. ||


Allshouse against Earn say.


1. The presumption of the law is, that a contract is intended to be per-
formed in the place or country in which it is made, if there be not an express
agreement or necessary implication that it is to be performed elsewhere ;
and when even such understanding is not apparent, the law of the contract
is the law of the place where it was made.

2. On a contract made in one state of the Union for the payment of money,
the debtor is not bound to go to another state to tender the money to the

3. Where A., residing in Pennsylvania, had obtained a judgment against
B., who resided in New Jersey, and the defendant, who also resided in New
Jersey, made a verbal promise to pay the money for B. if A. would wait a
certain time : it was held, that this promise was void under the Statute of
Frauds of New Jersey, and that an action could not be maintained upon it
against the defendant in the courts of Pennsylvania.

ERROR to the Court of Common Pleas of Northampton county.
*This was an appeal from the judgment of a justice of the
peace, in an action brought by Adam Ramsay against
John M. Allshouse.

The following case was stated for the opinion of the court below.

"On the trial of this cause before the justice, Jacob Winters,
Esq., on behalf of the plaintiff, testified : " That he was a justice
of the peace in Warren county, New Jersey, where the defendant
also resides. That the plaintiff had obtained judgment before him
against one Jacob Vannata, for eighteen dollars debt, and eighty-


f Allshouse v. Ramsay.]

two cents costs, and directed the witness to issue execution by a
certain day. That on that day he called on the defendant, with
whom Vannata lived, and requested the defendant to pay the
money for Vannata, who was working for him, and save him the
costs. He refused then, alleging that he was, in all probability,
then behind and in debt to him ; but said if Ramsay would wait
three months, to the first of August, he (the defendant), would pay
him the money ; the witness replied that he would see the plaintiff
that day, he expected, and he would let him know. That he saw
the plaintiff, and told him, who said "he would do it, provided he
would positively pay the money at the expiration of three months."
The witness testified he told this to the defendant, who said he
would; the witness requested a due bill from the defendant, which
he refused, alleging that his word was as good as his bond. On
the first of August the witness requested payment of the defendant,
who replied, he couldn't then. " Ramsay told me to ask him
again ; I did so, and he said he would not pay at all. This con-
versation with Allshouse all took place in New Jersey, where all
the parties lived but the plaintiff, who had shortly before removed
to Pennsylvania. Allshouse was at that time in partnership with
one Peter A. Miller. Vannata, I expect, was at work for the part-
nership, though I don't know."

In the state of New Jersey there was at the time of the above
transactions, and still is in force there, an act of the legislature of
that state, entitled, " An act for the prevention of frauds and per-
juries," passed the 26th of November 1794, the fourteenth section
of which is in these words, " No action shall be brought, whereby
to charge any executor or administrator upon any special promise,
to answer damages out of his own estate, or whereby to charge the
defendant upon any special promise to answer for the debt, default,
or miscarriages of other persons, &c., unless the agreement upon
which such action shall be brought, or some memorandum or note
thereof shall be in writing, and signed by the party to be charged
therewith, or some other person, thereunto by him or her lawfully

Although the defendant denies that he promised, as the witness
has detailed, and believes that he was misunderstood by the esquire ;

Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 37 of 75)