
    Abbotts Alderney Dairies, Appellant, v. Philadelphia Rapid Transit Co.
    
      Negligence — Refusal to permit plaintiff to develop case — Contributory negligence — Witness—N onsuit.
    
    Where in negligence ease for damages to a wagon, the plaintiff, the owner of the wagon, calls as his first witness, the driver, who was not a party to the case, and the driver’s testimony shows contributory negligence on his part, the trial judge commits reversible error if he refuses to permit the plaintiff to call other witnesses, and enters a nonsuit.
    The Act of March 11, 1876, P. L. 6, clearly implies that the plaintiff shall be first heard through his witnesses before a non-suit for lack of evidence is granted.
    Argued Nov. 24,1915.
    Appeal, No. 174, Oct. T., 1915,
    by plaintiff, from order of Municipal Court, Philadelphia Co., March T., 1915, No. 551, refusing to take off nonsuit in case of Abbotts Alderney Dairies v. Philadelphia Rapid Transit Company.
    Before Rice, P. J., Orlady, Head, Porter, Henderson, Kephart and Trexler, JJ.
    Reversed.
    Trespass to recover damages to a horse and wagon. Before Bonniwell, J.
    The opinion of the Superior Court states the case.
    
      Error assigned was refusal to take off nonsuit.
    
      Thos. Baehurn White, with him William J. Elliott, for appellant. —
    The court erred in refusing to allow the plaintiff to proceed with the examination of further witnesses, after only one witness had been heard: Bastían v. Philadelphia, 180 Pa. 227; Adams v. Lehigh Valley Transit Co., 45 Superior Ct. 623; Cronmuller v. Evening Telegraph, 232 Pa. 14; Cohen y. P. & R. R. Co., 211 Pa. 227.
    
      Harry S. Ambler, Jr., for appellee.
    March 1,1916:
   Opinion by

Hendekson, J.,

The plaintiff’s action was trespass for a collision between one of the defendant’s cars and a wagon used by the plaintiff in its business. At the trial the driver of the wagon was called as the first witness for the plaintiff. At the conclusion of his evidence which was given in a somewhat obscure manner a second witness, John Lever-its, was called, whereupon the court said to the plaintiff’s counsel: “What is the use, Mr. Elliott; on the testimony of your own witness, the driver, the case shows contributory negligence and I will have to nonsuit you.” Thereupon, the defendant’s counsel made the following objection : “I object to the examination of this witness on the ground that his evidence would be incompetent, irrelevant and immaterial.” The objection was sustained and this action of the court is the subject of the first assignment of error. The right of the plaintiff to introduce relevant evidence in addition to that given by the driver cannot be questioned. The witness examined was not a party to the action; he was not then in the service of the plaintiff and the latter was not precluded by what he said from introducing other evidence tending to support the action. The witness may have testified contrary to the expectation of the party calling him or may have entertained ill-will and by reason thereof have given a version different from that which other witnesses might have given; or because of lapse of memory or some other reason have failed to state the facts as they existed. But knowledge may have been in possession of other persons which was competent and relevant and which might have supported the plaintiff’s case. Even where the testimony of the plaintiff or of Ms witnesses is contradictory and on one part of it he might be entitled to go to the jury and another part not, it is for the jury to reconcile the conflicting statements: Cronmuller v. Evening Telegraph, 232 Pa. 14. If this be true in the case of a single witness with much stronger reason may it be applied to the case of witnesses on the same side giving statements contradictory to each other. It was not the burden of the plaintiff to disprove contributory negligence. It was only necessary that a case free from it be presented and before that question could be clearly determined the plaintiff had the right to present all of its material evidence. Objection was made by the defendant’s counsel to the introduction of evidence from the second witness before a question had been ashed him or an offer of evidence made. The court could not properly declare the witness incompetent or his evidence irrelevant and immaterial without having heard the testimony or a statement of what was proposed to be proved.

Following the exclusion of the witness the court granted a nonsuit. It is unnecessary to consider _ the sufficiency of the evidence introduced by the plaintiff in the testimony of the witness examined to call for a submission of the case to the jury for the nonsuit could only be entered after the plaintiff had had an opportunity to introduce its evidence and it had then appeared that this was not such evidence as in law is sufficient to maintain the action. The first section of the Act of March 11,1875, P. L. 6, clearly implies that the plaintiff shall be first-heard through his witnesses before a nonsuit for lack of evidence is granted. Under any other application of the statute the plaintiff might be thrown out of court when he had testimony available with which to make out a prima facie case. He is not bound to present his best evidence first and may, if he can, overcome the deficiency in the evidence of one witness by other evidence. The appellant was entitled to be heard in the testimony of the witness offered. The materiality of his evidence could only be determined after it was presented.

The judgment is reversed with a new venire.  