
    Buchanan v. Flinn, Appellant.
    
      Negligence — Automobiles—Evidence—Discharge of chauffeur — Experts.
    1. In an action to recover damages for injuries to an automobile caused by a collision between automobiles owned by the plaintiff and the defendant, where the defendant in his testimony exonerates his chauffeur from blame, and on cross-examination states that he had discharged the chauffeur after the accident because the women of his family would never again feel safe with him, it is reversible error for the trial judge in his charge to give the jury the impression that they could take into consideration the fact that the defendant’s chauffeur had been discharged as bearing on the inquiry whether he had been guilty of negligence at the time of the accident. The fact of the discharge is not substantive evidence for the purpose of establishing negligence.
    2. The taking of precaution after an accident against the future cannot be held to be an implied admission of liability for what had theretofore taken place.
    3. In an action to recover damages for injuries to an automobile caused by a collision between two automobiles, it is error to permit the jury to consider as substantive proof of defendant’s negligence declarations of defendant’s chauffeur made to the plaintiff, to the effect that he had been discharged, and asking for a letter stating that he was not altogether to blame.
    4. In such a case where it appears that the two machines were in good working condition, and the circumstances of the accident are fully described, and are of such a nature that men without special training could understand the situation, expert testimony is not admissible.
    Argued May 9, 1912.
    Appeal, No. 187, April T., 1912, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1909, No. 712, on verdict for plaintiff in case .of J. J. Buchanan v. William Flinn.
    Before Rice, P. J., . Henderson, Morrison, Orlady, Head and Porter, JJ.
    Reversed.
    Trespass to recover damages for injuries to an automobile, sustained in a collision between plaintiff’s and defendant’s automobile on July 21, 1908. Before Ormerod, P. J., specially presiding.
    When defendant’s witness and chauffeur, James Portser, was on the stand and during cross-examination he was asked by plaintiff’s counsel:
    “Q. If I understand you, you think you were not to blame at all for this accident? A.. I can’t figure out wherein I was. Q. Well, now, isn’t it a fact that you were discharged because of it?”
    
      Objected to, there is no evidence he was discharged and that is a conclusion he is trying to draw at this time. Objection overruled.
    To which ruling of the court counsel for defendant requests an exception.
    Exception allowed and bill sealed. [3]
    ££Q. Didn’t you say to Dr. Buchanan you had come to see him because Senator Flinn had discharged you and you wanted to get him to give you a letter saying that it was not wholly — that the accident was not wholly your fault? That if Dr. Buchanan would give you such a letter as that, saying the accident was not entirely your fault, that it would help you get another job, that you were down and out in Pittsburg as a chauffeur because you had been discharged because of this accident? A. Candidly, I cannot recall making such a statement to Dr. Buchanan. Q. Did you make any statement to that effect? A. I don’t remember making a statement to that effect.”
    The plaintiff, J. J. Buchanan, was on the stand in rebuttal, and having testified that Mr. Portser, defendant’s chauffeur, had gone to his house the second or third night after the accident, was asked:
    <£Q. Did he make any request to you with reference to giving him a letter as to the circumstances of the accident, or what did he say? A. Mr. Portser came to me and asked after my son who had the cut on his head. I told him he was getting along as well as we could expect. Mr. Portser said Mr. Flinn had discharged him from his employment and that he saw no way in which he could secure a situation in Pittsburg, that he would have to leave the city because his reputation as a chauffeur was lost and that the only way he saw that he could make a living now would be if I would give him a letter saying that he was not altogether to blame. He did not ask me, for a letter saying he was not to blame, but saying he was not altogether to blame. I told him that I considered he was altogether to blame, and that I would decline to give such a letter. That I would think it to be a bad thing to give a man who drove a car in that way, a letter which might bring him into the.same employment again.”
    The court charged in part as follows:
    [It is also a circumstance urged upon you by the plaintiff that the day following this accident, Senator Flinn discharged the chauffeur who had driven the car. Senator Flinn was asked the question as to whether or not he had not discharged the chauffeur, and he answered “yes” and “no.” He said on the day following he had a conference with Mr. Portser, his chauffeur, and that he said to him his family would not feel safe to ride with him any more, and that there would have to be a suspension of relations. You are to consider what the natural and probable effect of that conversation would be, and you are to say whether or not there is anything in that attitude or conduct of Senator Flinn which would indicate he was blaming his chauffeur for the accident that occurred.] [8] [In addition to that, you have the testimony of Dr. Buchanan as to the conversation he had with Mr. Portser, either the day after the accident or one or two days after. He said that Mr. Portser came to his house one evening and said that Senator Flinn had discharged him because of the accident. He said he was down and out in Pitts-burg, and asked him if he would not give him a letter in which he would say that he was not altogether to blame, and Dr. Buchanan refused to do that. Whether Dr. Buchanan refused or not, is not a material question in the case, except this: The evidence is offered as bearing upon the question as to whether or not the chauffeur at that time did intend to admit that he was, to a certain extent, to blame for this accident.] [9]
    Verdict and judgment for plaintiff for $1,263.60. Defendant appealed.
    
      Errors assigned were (3) ruling on evidence, quoting the bill of exceptions; (4, 6) above ruling on evidence without exceptions; (8,’9) above instructions, quoting them.
    
      
      J. O. Wicks and John S. Weller, for appellant.
    — It is a settled principle of law in Pennsylvania (and the great weight of authority is to the same effect), that evidence of precautions taken after the alleged negligent act is not admissible for the purpose of showing antecedent negligence: Baran v. Reading Iron Co., 202 Pa. 274; Elias v. Lancaster, 203 Pa. 638; Matteson v. New York Central & H. R. R., 218 Pa. 627; Metzler v. Phila. & Reading R. R. Co., 28 Pa. Superior Ct. 180; Hewitt v. Ry. Co., 167 Mass. 483 (46 N. E. Repr. 106); Matteson v. R. R. Co., 218 Pa. 627.
    Declarations of an agent are not admissible against his principal after the transaction is completed and ended: Huntingdon & Broad Top Mt. R. R. & Coal Co. v. Decker, 82 Pa. 119; Chapin v. Cambria Iron Co., 145 Pa. 478; Giberson v. Patterson Mills Co., 174 Pa. 369; 187 Pa. 513.
    It was error for the court to charge in connection with this testimony of Dr. Buchanan containing Portser’s declarations, as set forth in ninth assignment of error, that the jury might infer Portser meant to admit that he was somewhat to blame: Dampman v. Pa. R. R. Co., 166 Pa. 520; Long v. Maguire, 22 Pa. 163; Lundvick v. Ins. Co., 128 Iowa, 376 (104 N. W. Repr. 429); Owensboro v. Westinghouse, 165 Fed. Repr. 385; Westfeldt v. Adams, 135 N. C. 591 (47 S. E. Repr. 816); Hollenbaek v. Hand, 189 Fed. Repr. 929.
    
      George B. Gordon, of Gordon & Smith, for appellee.
    July 18, 1912:
   Opinion by

Henderson, J.,

This action arose out of a collision between automobiles owned by the plaintiff and the defendant. The allegation of the former was that the defendant’s chauffeur was negligent in driving his machine on the wrong side of the road and in a manner to necessarily bring about the injury complained of. The testimony of the defendant and his chauffeur tended to exonerate the latter from responsibility for the accident. In the cross-examination of the defendant lie was asked whether he had not discharged the chauffeur soon after the collision, to which the witness replied, “I would say no and yes.” He then explained that he told his chauffeur the next afternoon that the women of his family would never again feel safe with him in charge of the car and that he thought it advisable to suspend further relations with him; that the timidity of his family was the reason for his doing so. Portser, the defendant’s chauffeur, testified on cross-examination that he had no recollection of having requested the plaintiff to write a letter saying that the accident was not wholly his, Portser’s, fault, and that he desired such a letter in order to enable him to get another place because Senator Flinn had discharged him. This testimony was contradicted by the plaintiff who said that the conversation with regard to the letter had occurred as set forth in the question propounded to Portser. The learned trial judge in charging the jury called attention to the alleged discharge of his chauffeur by the defendant, and said, “You are to consider what the natural and probable effect of that conversation would be, and you are to say whether or not there is anything in that attitude or conduct of Senator Flinn which would indicate he was blaming his chauffeur for the accident that occurred.” This instruction is made the subject of the eighth assignment of error. In the form in which this part of the testimony was thus brought to the attention of the jury the impression must have been produced that the jury was to take into consideration the fact that the defendant’s chauffeur had been discharged as bearing on the inquiry whether he had been guilty of negligence at the time of the accident, but we are unable to obtain any view of the case which would render the evidence competent for this purpose. If it be conceded that it was admissible to prove that the chauffeur was discharged by way of contradiction of the defendant’s evidence wherein he explained the manner of the accident in a way to relieve his driver from culpability it could be received for the purpose of contradiction only and not as substantive evidence of negligence, but as the matter was-presented to the jury they would be warranted in concluding that if the chauffeur was discharged that was evidence that he was guilty of negligence when the collision occurred. The explanation of the defendant excluded the theory of a discharge on account of the chauffeur’s negligence, and the fact of the discharge was not competent for the purpose of establishing negligence. The principle involved in Baran v. Reading Iron Co., 202 Pa. 274, and Matteson v. N. Y. Cen. R. R. Co., 218 Pa. 527, applies to this feature of the case. The taking of precaution against the future cannot be held to be an implied admission of liability for what had theretofore taken place. An employer might discharge his employee under such circumstances because he had not avoided the accident, even if he were not to blame for producing it, and the apprehension of timid members of his family might well induce him to change his driver, even if his own judgment did not approve of such act. The learned judge should have instructed the jury if they were to consider that branch of the case that it was only admissible as tending to show that the defendant entertained a different view of the chauffeur’s responsibility from that stated by him at the trial and that it was not to be taken into account as an admission by the defendant that the chauffeur was guilty of negligence. The eighth assignment is therefore sustained.

For like reasons we think the ninth assignment should be sustained. The evidence of the plaintiff as to the declarations of Portser was only admissible by way of contradiction. At the time of the conversation referred to Portser was not in the service of the defendant and any declarations made by him as to what took place some time before would not be admissible against the defendant for the purpose of establishing negligence. But in the manner in which the evidence was brought to the attention of the jury they could well conclude that an admission by Portser that he was “ to a certain extent to blame for this accident was substantive testimony bearing on the question of the defendant’s liability.

As the case must go back for another trial it is unnecessary to consider those assignments which relate to the character of the charge and the omission of the trial judge to call the attention of the jury to salient features of the Evidence. No exception was taken to the matter complained of in the fourth and sixth assignments. They are not therefore properly before us for consideration. The learned counsel for the appellant understood that the exception taken to the evidence offered as set forth in the third assignment applied to that covered by the fourth and sixth assignments, but we think it clear from the course of the examination that the exception was not sufficient to cover the testimony embraced in the latter two assignments. There is nothing in the case from which we conclude that the testimony of an expert was admissible as to the conduct of the drivers of the machines. The vehicles were in good working condition, and the circumstances were fully described and readily understood by the jury and were of such a nature that men without special training could understand the situation. In such a case expert testimony is not admissible. The case does not call for further comment.

The judgment is reversed with a v. f. d. n.  