163 Pa. 65

Fitzpatrick v. Riley

Decided July 12, 1894

Supreme Court of Pennsylvania · decided 1894-07-12

Appeal, No. 264, Jan. T., 1894, by-defendant, John B. Riley, from judgment of C. P. No. 3, Philadelphia Co., March T., 1890, No. 132, on verdict for plaintiff, Mary Fitzpatrick. Trespass for death of husband. Before Gordon, J. From the record it appeared that plaintiff’s husband, Martin Fitzpatrick, died Feb. 25, 1890, from injuries resulting from an accident which occurred Feb. 12, 1890, while he was engaged in defendant’s employ in lowering a derrick or mast. On April 5, 1890, plaintiff issued a summons in trespass which was returned nihil habet. On July 16, 1891, she began a second action in trespass in the same court. Defendant pleaded not guilty, and when the case was called for trial a verdict was rendered for plaintiff. The court subsequently granted a new trial, and when the case was called, entered a nonsuit on the ground that the action was barred by the statute as it bad not been brought within a year from the time the cause of action had accrued. Plaintiff then issued an alias summons in her first action which was returned “ served.” Defendant filed the following plea: “ The defendant, John B. Riley, comes and says that the plaintiff ought not to further have and maintain.her said action, and the writ should be abated, because he says that, heretofore in the Court of Common Pleas oE Philadelphia county, No. 3, to June Term, 1891, No. 546, the said Mary Fitzpatrick brought an action against this defendant and caused a writ in trespass to be therein issued, and the matter so proceeded that an- issue was framed upon the claim set up in the present action, and thereafter a jury was called, and it being then and there made to appear to the court that the action had not been brought within a year of the date of the death of Martin Fitzpatrick, judgment of nonsuit was entered ; by which said last mentioned action the plaintiff elected to proceed to a final determination of the cause and to abandon the proceeding instituted under the writ first hereinabove pleaded; and this cause proceeds under an alias writ issued in the first mentioned ac^ tion, to which alias writ the plaintiff is not entitled by reason of the later action by her instituted as aforesaid. Wherefore the defendant prays judgment, etc.” After the above plea was filed the court, on plaintiff’s application, took off the judgment of nonsuit in the second action. Plaintiff paid the costs in that action and the suit was discontinued. The court then overruled the plea filed in the first, suit. Defendant then entered a plea of not guilty. At the trial John Travers, a witness for plaintiff, testified that .he had worked about the derrick for several months before the accident; that .there were a sheave and pin in the hole in the mast, that he saw them fall out at the time of the accident, when the bottom of the mast was lifted from the heel-block, and that the sheave fell into water and the iron pin struck Fitzpatrick; that he had seen the sheave and pin in the mast about two weeks before the accident, when in a row-boat on the river, and that a similar accident had happened a short time before’ to Mr. Riley’s derrick. on the other side of the river. John Welsh, another witness to the accident, testified that he knew nothing about rigging at all and that he had no knowledge before the accident of the fact that the sheave and pin were in the mast, but that he saw a pin fall and hit Fitzpatrick, on the head. Travers testified that the sheave and pin had not been propei’ly fastened in the mast; that after the accident he examined the mast and found that there had been no batten over the hole through which, the pin protruded, to hold it in its place, and that there had been no key through the pin to hold it, which-was the proper and usual appliance in such case. Four witnesses .for defendant testified that there was no sheave or pin in the mast at the time of the accident, and that it was three or four months afterwards before a sheave and pin had been put in it. A witness for defendant testified that on the day of the accident Travers told him that the deceased was killed by a nut which had fallen and struck him on the head. [John W. Keyser, a witness for defendant, was asked on cross-examination : “ Did you hand Mr. Travers any money in consideration of his promise to go away and not testify? ” Objected to, objection overruled and bill sealed. “A. Yes, sir.”] [2] “ Did Mr. Riley ask you to go see Mr. Travers ? ” Objected to, objection sustained. Defendant’s request for binding instruction was refused. [3] Yerdict and judgment for plaintiff for $3,500. Errors assigned were (1) striking off special plea; (2) ruling ; (3) instructions; quoting instructions and question and answer, but not bill of exception.

Relies on Bournonville v. Goodall

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1894-07-12

How this case has been cited

Cited by 15 later decisions — most recently August 1952

15 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1Opinion by

Mb. Justice Mitchell,

¶2It was bad practice and a hardship on defendant for plaintiff after bringing a second action and proceeding to trial and compulsory nonsuit, to go back to his first action by an-alias summons therein. The costs of the nonsuit not having been paid, the plea in abatement to the alias in the first action was a good plea of lis pendens, and the court might well have refused to take off the nonsuit, and abated the action on the alias. But that was á matter within its discretion, and the nonsuit having been taken off, and the suit discontinued, and costs paid, there was no error in overruling -the plea in abatement.

¶3 *70The issue of a new original instead of an alias in the first action was not equivalent to a discontinuance of the latter, as appellant argues. It could have no other force than of a second action begun while the first was pending. The real hardship to defendant is in treating a compulsory nonsuit under the statute after plaintiff’s evidence is all in, as an ordinary non-suit and not as a demurrer to evidence, which it really is, and which ought to be a bar to another action. But the practice in this respect is firmly settled: Bournonville v. Goodall, 10 Pa. 133.

¶4• The question to the witness Keyser .had an apparent propriety as going to show his interest or bias in the case, and therefore his credibility. When it was sought to make the defendant responsible for the witness’s conduct the defendant’s objection was sustained. If, after this, any improper comment was made by counsel upon the testimony it was for the court below, not for us, to correct.

¶5The third assignment of error is really the pinch of the case. The evidence of defendant’s negligence' was weak, but it could not be taken from the jury. One witness swore positively to facts which tended to show negligence, and however much he contradicted himself at the two trials, and however improbable his stoiy, his credibility was for the jury. The learned judge left it to them, with a pretty strong intimation of their duty to scrutinize it carefully. He would not have been justified in giving them a binding direction to disregard it.

¶6Judgment affirmed.