Opinion by
Mr. Justice Arnold,
Plaintiff sued in trespass for injuries suffered by her in a collision of the automobile in which she was a guest passenger. Original defendants are the Borough of East Pittsburgh and the estate of the owner and operator of the automobile. East Pittsburgh brought in the two railroads as additional defendants. The jury returned a verdict for plaintiff against the original defendants but in favor of the additional defendants.
East Pittsburgh appeals from the refusal of its motions for judgment n.o.v. and new trial, contending: (1) that no negligence in the borough was established, and that if negligent, it was not proved the proximate cause of the injuries; (2) that a new trial should be granted because (a) the court erred in excluding testimony as to plaintiff’s declarations offered as admissions and tending to show contributory negligence, (b) the court erred in its refusal of a motion to withdraw a juror because of prejudicial remarks by counsel for the estate in his closing to the jury, and (c) the verdict in favor of the two railroads was against the evidence and the weight of the evidence.
The estate appeals from the refusal of its motions for judgment n.o.v. and new trial, and contends that the evidence shows due care was exercised by the deceased; that plaintiff’s counsel made prejudicial remarks in the jury’s presence; and that the court erred in refusing to consolidate for trial the instant case [88]*88and the action brought by the estate against the Borough of East Pittsburgh.
The evidence established the following facts: The improved portion of Linden Avenue, in East Pittsburgh, is approximately thirty feet wide, and has two sets of trolley tracks on the southerly portion with sufficient room on the northerly portion for vehicles to travel without being on the rails. Immediately adjacent to the northern side of the improved cartway is a six inch curb, next to which is a six foot sidewalk. A single line of railroad ties, six or seven inches high and nine inches wide, runs along the northerly side of the sidewalk. North of the ties is a level portion of ground, some four feet in width, beyond which there is a hillside running downward for approximately 150 to 175 feet at an approximate angle of 45 degrees. This ends at a ditch which flanks the railroad tracks of the defendant railroads. There is no barricade at the top of the hillside.
At approximately 2:00 A.M. on April 15, 1950, the decedent, with plaintiff as his guest passenger, was operating his automobile westerly on the northern side of the improved cartway. No more than three or four vehicles were travelling on the street at that time. He was proceeding down hill at a speed of approximately 25 to 30 miles per hour, with the car’s wheels straddling the northernmost rail of the trolley tracks. Although it was damp, there had been no rain or snow, and it was clear. Decedent’s automobile was a comparatively new Lincoln, and apparently in good condition. As he was thus proceeding, suddenly and for an unexplained reason, his automobile turned to the right, ran over the curb, sidewalk and ties, continued on the four foot portion of ground in a northwesterly direction for a few feet, and then down the hillside. The automobile did not overturn, traversing the 160 feet [89]*89on its wheels until it collided with the ditch on defendant railroad’s right of way. Decedent was almost instantly killed, and plaintiff was seriously injured.
Although the sidewalk had been built by the railroad, which also placed the ties beside it, the proof was that the full right of way of Linden Avenue extended northerly some seventy feet beyond the improved cartway — that is, a large portion of the hillside belonged to the Borough of East Pittsburgh. The construction of the sidewalk was done at the borough’s request, and the ties were laid to prevent erosion of the hillside. Further, the borough exercised control of the land, as evidenced by its “No Dumping” signs thereon.
Under the facts, it cannot be held as a matter of law that the decedent was not negligent, and therefore the court did not err in refusing judgment n.o.v. as to the estate. The presumption that decedent used due care Avas overcome by testimony sufficient to establish negligence, if believed by the jury. There Avas no matter introduced to exculpate him, and the facts made out a case for the jury. Cf. Knox v. Simmerman, 301 Pa. 1, 151 A. 678; Maltz v. Carter, 311 Pa. 550, 166 A. 852; Kotal, Admr. v. Goldberg, Admrx., 375 Pa. 397, 100 A. 2d 630. Also, whether the borough Avas negligent in not providing barricades at the hillside edge was a question properly left to the jury. “If a public street is danger-.o.us .by. reason of. its proximity..to an embankment or ..precipitous decline,, the city is liable for its failure by the erection of barriers or other devices to guard travelers- from injury, in the use of the highway, who exercise reasonable care for their own safety”: Rasmus v. Pennsylvania Railroad Company, 164 Pa. Superior Ct. 635, 638, 67 A. 2d 660. See also Winegardner v. Springfield Township, 258 Pa. 496, 102 A. 134; Shipley v. Pittsburgh, 321 Pa. 494, 184 A. 671.
[90]*90Defendant-estate also complains that counsel for plaintiff made prejudicial remarks by virtue of which it was entitled to withdrawal of a juror. With this we cannot agree. Counsel had been directed by the court, in chambers, as to the questions he might put to his plaintiff, in view of the Act of 1887, P.L. 158, 28 PS §322.1 In questioning plaintiff as to events on the evening of the accident, an objection, based on the Act, was raised by the attorney for the estate. Thereupon plaintiff’s counsel stated: “Well, I would like to get the testimony of this party who knows more about the accident than anybody on the record.” The court refused the motion for withdrawal of a juror, but immediately explained the effect of the Act to the jury, and sustained the objection to the question. The trial judge destroyed the harmful effect of the remark, if it had any. These matters are within the trial court’s discretion, and it will not be interfered with except for an abuse: Clark v. Essex Wire Corporation, 361 Pa. 60, 65, 63 A. 2d 35.
The refusal to consolidate the actions for trial was also an exercise of discretion resting in the trial court, and will not be reversed: Pa. R.C.P. 213. As stated by the court, the jury might have been influenced by sympathy for the decedent to the prejudice of the defendants in the instant case, and it was for the court to determine whether or not this could happen.
East Pittsburgh next complains that the court should have withdrawn a juror because of remarks by [91]*91counsel for the estate in closing to the jury, and therefore should have a new trial on this ground. Counsel for the estate stated to the jury that for some 25 years the borough and the railroads had permitted the hillside to remain open and without barricades, and that this amounted practically to the existence of an “open grave.” Upon complaint made by counsel for the borough, estate’s counsel apologized that it was not intended as inflammatory, and the court admonished the jury to “disregard the use of the term ‘open grave’ . . . and . . . make your decision calmly and coolly, solely upon the facts and the evidence.” If there was anything prejudicial in the remark, the court has cured it, and was well warranted, in its discretion, in refusing to withdraw a juror on that account.
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Opinion by
Mr. Justice Arnold,
Plaintiff sued in trespass for injuries suffered by her in a collision of the automobile in which she was a guest passenger. Original defendants are the Borough of East Pittsburgh and the estate of the owner and operator of the automobile. East Pittsburgh brought in the two railroads as additional defendants. The jury returned a verdict for plaintiff against the original defendants but in favor of the additional defendants.
East Pittsburgh appeals from the refusal of its motions for judgment n.o.v. and new trial, contending: (1) that no negligence in the borough was established, and that if negligent, it was not proved the proximate cause of the injuries; (2) that a new trial should be granted because (a) the court erred in excluding testimony as to plaintiff’s declarations offered as admissions and tending to show contributory negligence, (b) the court erred in its refusal of a motion to withdraw a juror because of prejudicial remarks by counsel for the estate in his closing to the jury, and (c) the verdict in favor of the two railroads was against the evidence and the weight of the evidence.
The estate appeals from the refusal of its motions for judgment n.o.v. and new trial, and contends that the evidence shows due care was exercised by the deceased; that plaintiff’s counsel made prejudicial remarks in the jury’s presence; and that the court erred in refusing to consolidate for trial the instant case [88]*88and the action brought by the estate against the Borough of East Pittsburgh.
The evidence established the following facts: The improved portion of Linden Avenue, in East Pittsburgh, is approximately thirty feet wide, and has two sets of trolley tracks on the southerly portion with sufficient room on the northerly portion for vehicles to travel without being on the rails. Immediately adjacent to the northern side of the improved cartway is a six inch curb, next to which is a six foot sidewalk. A single line of railroad ties, six or seven inches high and nine inches wide, runs along the northerly side of the sidewalk. North of the ties is a level portion of ground, some four feet in width, beyond which there is a hillside running downward for approximately 150 to 175 feet at an approximate angle of 45 degrees. This ends at a ditch which flanks the railroad tracks of the defendant railroads. There is no barricade at the top of the hillside.
At approximately 2:00 A.M. on April 15, 1950, the decedent, with plaintiff as his guest passenger, was operating his automobile westerly on the northern side of the improved cartway. No more than three or four vehicles were travelling on the street at that time. He was proceeding down hill at a speed of approximately 25 to 30 miles per hour, with the car’s wheels straddling the northernmost rail of the trolley tracks. Although it was damp, there had been no rain or snow, and it was clear. Decedent’s automobile was a comparatively new Lincoln, and apparently in good condition. As he was thus proceeding, suddenly and for an unexplained reason, his automobile turned to the right, ran over the curb, sidewalk and ties, continued on the four foot portion of ground in a northwesterly direction for a few feet, and then down the hillside. The automobile did not overturn, traversing the 160 feet [89]*89on its wheels until it collided with the ditch on defendant railroad’s right of way. Decedent was almost instantly killed, and plaintiff was seriously injured.
Although the sidewalk had been built by the railroad, which also placed the ties beside it, the proof was that the full right of way of Linden Avenue extended northerly some seventy feet beyond the improved cartway — that is, a large portion of the hillside belonged to the Borough of East Pittsburgh. The construction of the sidewalk was done at the borough’s request, and the ties were laid to prevent erosion of the hillside. Further, the borough exercised control of the land, as evidenced by its “No Dumping” signs thereon.
Under the facts, it cannot be held as a matter of law that the decedent was not negligent, and therefore the court did not err in refusing judgment n.o.v. as to the estate. The presumption that decedent used due care Avas overcome by testimony sufficient to establish negligence, if believed by the jury. There Avas no matter introduced to exculpate him, and the facts made out a case for the jury. Cf. Knox v. Simmerman, 301 Pa. 1, 151 A. 678; Maltz v. Carter, 311 Pa. 550, 166 A. 852; Kotal, Admr. v. Goldberg, Admrx., 375 Pa. 397, 100 A. 2d 630. Also, whether the borough Avas negligent in not providing barricades at the hillside edge was a question properly left to the jury. “If a public street is danger-.o.us .by. reason of. its proximity..to an embankment or ..precipitous decline,, the city is liable for its failure by the erection of barriers or other devices to guard travelers- from injury, in the use of the highway, who exercise reasonable care for their own safety”: Rasmus v. Pennsylvania Railroad Company, 164 Pa. Superior Ct. 635, 638, 67 A. 2d 660. See also Winegardner v. Springfield Township, 258 Pa. 496, 102 A. 134; Shipley v. Pittsburgh, 321 Pa. 494, 184 A. 671.
[90]*90Defendant-estate also complains that counsel for plaintiff made prejudicial remarks by virtue of which it was entitled to withdrawal of a juror. With this we cannot agree. Counsel had been directed by the court, in chambers, as to the questions he might put to his plaintiff, in view of the Act of 1887, P.L. 158, 28 PS §322.1 In questioning plaintiff as to events on the evening of the accident, an objection, based on the Act, was raised by the attorney for the estate. Thereupon plaintiff’s counsel stated: “Well, I would like to get the testimony of this party who knows more about the accident than anybody on the record.” The court refused the motion for withdrawal of a juror, but immediately explained the effect of the Act to the jury, and sustained the objection to the question. The trial judge destroyed the harmful effect of the remark, if it had any. These matters are within the trial court’s discretion, and it will not be interfered with except for an abuse: Clark v. Essex Wire Corporation, 361 Pa. 60, 65, 63 A. 2d 35.
The refusal to consolidate the actions for trial was also an exercise of discretion resting in the trial court, and will not be reversed: Pa. R.C.P. 213. As stated by the court, the jury might have been influenced by sympathy for the decedent to the prejudice of the defendants in the instant case, and it was for the court to determine whether or not this could happen.
East Pittsburgh next complains that the court should have withdrawn a juror because of remarks by [91]*91counsel for the estate in closing to the jury, and therefore should have a new trial on this ground. Counsel for the estate stated to the jury that for some 25 years the borough and the railroads had permitted the hillside to remain open and without barricades, and that this amounted practically to the existence of an “open grave.” Upon complaint made by counsel for the borough, estate’s counsel apologized that it was not intended as inflammatory, and the court admonished the jury to “disregard the use of the term ‘open grave’ . . . and . . . make your decision calmly and coolly, solely upon the facts and the evidence.” If there was anything prejudicial in the remark, the court has cured it, and was well warranted, in its discretion, in refusing to withdraw a juror on that account.
Nor can a new trial be granted to the borough on the ground that the verdict in favor of the additional defendants was against the evidence or the weight of the evidence. Under the testimony, it was for the jury whether these defendants were under any duty or violated any duty. The borough itself established that the street was 100 feet in width, which extended some 60 feet beyond the edge of the hillside. It also established that the sidewalk was built by the railroad at the borough’s request, and that the ties were placed by the railroad in response to the borough’s demand that it protect the slope from erosion, and not as a barricade. Another factor upon which the jury could rightfully determine that the borough, and not the railroads, controlled the premises, was that the land was posted with “no dumping” signs by the borough. It was clearly a question for the jury, determined in favor of the railroads, and we cannot disturb that verdict.
Lastly, the borough complains that the court erred in refusing to permit testimony offered to establish contributory negligence on the part of the plaintiff. [92]*92This testimony was to be given by the chief of police of the borough and by the captain of the police of the railroad, and concerned an interview between them and plaintiff at the hospital in which she was confined, which interview occurred two days after the accident. The offer by counsel was to prove by these witnesses that they interviewed plaintiff, who informed them that on the night of the accident she had gone with decedent to a drinking place, that “while there for some time they danced and she drank highballs; that he, Mr. Sladek, drank beer, and that after they had been there for some time they left and were on their way home when this accident happened.” The court excluded the testimony under the Act of 1887, P.L. 158, 28 PS §322, and on the ground that it was merely hearsay.
Under the Act, the reason for rejection of the testimony necessarily is the incompetency of the person, not the testimony. And these persons could be incompetent only if they had an interest adverse to the decedent. Did these witnesses have such an interest? Would they, if the verdict were in favor of the borough, gain as a result? We think not. The fact of their employment by the corporate defendants does not make them parties to the action, nor does it give them an interest adverse to the decedent as contemplated by the Act. A verdict for or against these defendants does not change their status in the least. Cf. Groome’s Estate, 337 Pa. 250, 11 A. 2d 271. -They were merely agents of the borough and railroad, not “parties to the thing” including the decedent and their employers; their interest was not “a fixed vested interest” such as would cause them “to gain or lose, as the direct legal operation and effect of the judgment”: Braine v. Spalding, 52 Pa. 247, 248. Nor can it be doubted that the plaintiff’s statements to them were declarations against interest.
[93]*93But the testimony was properly excluded. Though fully established, the facts offered to.be proved were not sufficient to convict plaintiff of contributory negligence. The fact alone that the defendant “had been drinking during the course of the evening preceding the accident” is not sufficient. There was no offer to prove intoxication; and drinking intoxicating liquors, in itself, does not prove unfitness to drive. See Landy v. Rosenstein, 325 Pa. 209, 188 A. 855; Commonwealth v. Stosny, 152 Pa. Superior Ct. 236, 31 A. 2d 582.
Judgments affirmed.