Simon v. Pullman Co.

Plaintiff was a passenger on a Pullman car arriving at the Pennsylvania Station. Plaintiff had four pieces of baggage which his wife told the Pullman porter to give to a “ Red Cap ” (a Pennsylvania railroad employee) to carry to plaintiff at the station dining room. When the “ Red Cap ” arrived he had only three pieces of baggage.

At the trial the Pullman porter testified that four pieces of baggage were handed over to the “ Red Cap.” Over objections of the defendant Pullman Company, plaintiff was permitted to give the hearsay statement of the “ Red Cap,” who was not called, to the effect that “ all that was given him were the three bags that he carried.” Appellant Pullman Company excepted, and the propriety of this testimony is the chief point involved on this appeal.

The testimony was inadmissible either as part of the res gestee or as an admission by an agent within the scope of his employment. Since the judgment must have been based on this testimony, the error was so prejudicial as to demand a reversal.

Judgments reversed and new trial ordered, with thirty dollars costs to plaintiff against the Pennsylvania Railroad Company to abide the event, and thirty dollars costs to the Pullman Company against plaintiff to abide the event.

All concur; present, Bijur, Delehanty and Wagner, JJ.