38 A. 416 (Pa. 1897), 6, Kepner v. The Harrisburg Traction Co.
| Judge | Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ. |
| Parties | Edward A. Kepner, Appellant, v. The Harrisburg Traction Company, operating the East Harrisburg Passenger Railway Co |
| Date | 11 October 1897 |
| Docket Number | 6 |
| Court | Pennsylvania Supreme Court |
| Citation | 38 A. 416,183 Pa. 24 |
Page 416
Argued: May 31, 1897
Appeal, No. 6, Jan. Term, 1897, by plaintiff, from order of C. P. Dauphin County, March T., 1896, No. 433, refusing to take off nonsuit. Affirmed.
Trespass for personal injuries. Before McPHERSON, J.
The facts appear by the opinion of the Supreme Court.
At the trial the court entered a compulsory nonsuit, which it subsequently refused to take off in an opinion in part as follows:
The motion to take off the nonsuit raises a question that should be settled definitely. The plaintiff concedes that no other evidence of defendant's negligence is to be found than the unexplained breaking of a wire; but the argument is vigorously made that nothing more is needed to carry the case to a jury. Two or three decisions in other jurisdictions support this view, but to adopt it in Pennsylvania would be so marked a departure from the course of decision in our own state, that a trial judge cannot be expected to take the step. As a question of policy, it may be wise to put into one class all companies using electricity upon or over the streets of a city and subject them to a presumption of negligence whenever an injury is done by any appliance under their control. But whether it be wise or not, it is clear that the proposed change of rule should be ordained by the legislature or announced by the Supreme Court; for by the present rule, in the case of injury to persons on the street, the courts of common pleas are bound to deal with these companies as with other defendants charged with negligence, and to require affirmative evidence that they have failed in duty, other than the bare fact that an appliance of the business has caused the injury complained of.
Considering the proposed rule in reference to street railway companies alone, it is obvious that one result would be to make such companies insure the safety of persons on the street against injury by any appliance of transportation. As in the present case, the plaintiff in a suit for such an injury would prove the bare fact that he had been hurt; thereupon the presumption of the defendant's negligence would arise, and evidence in explanation would probably be offered; and then, upon the question whether the explanation was sufficient -- the element of contributory negligence being laid aside -- the controversy would go to the jury, with a verdict for the plaintiff as the highly probable result. A report of such a trial may be found in Uggla v. Railway Co., 160 Mass. 351. In that case the plaintiff while driving on Park Square, in Boston, "was struck by a broken iron attached to a wire guy. The iron was part of an ear, used to clasp a trolley wire and apply to it a strain from the guy, in order to keep the trolley wire in place around a curve and over the defendant's track. The ear broke with the strain and one part of it fell, striking the plaintiff on his head. As to these facts there was no dispute at the trial, and there was no other evidence that the defendant was in fault." Thereupon the defendant offered its explanation, and introduced evidence, "that it was not guilty of negligence, tending to show that the break was a clean break, bright in color and appearance, and that the iron was sound all through; without flaw or defect in it; and also that the whole apparatus was manufactured and put up by a manufacturer of the highest reputation; that the ear and guy constituted the best and strongest device known at the time for keeping trolley wires in place; that the defendant employed a corps of competent superintendents, foremen and inspectors, who inspected the whole line weekly, including the ears and their attachments; and that this particular part of the line had been inspected within a week prior to the accident." It is not likely that in any case more could be proved than is here set out; but the case was carried to the jury by the presumption of the defendant's negligence, and in spite of an explanation apparently complete there was a verdict in favor of the plaintiff.
Volkmar v. Elevated Railway Co., 134 N.Y. 418 is a somewhat similar decision. It may fairly be cited in support of the plaintiff's contention, although there was some slight evidence in that case of the defendant's negligence, in addition to the fact that a bolt had fallen from its structure and had struck the plaintiff upon the shoulder. Haynes v. Gas Co., 114 N.C. 203, contains some general language which is in the line of the argument now being considered; but in that case the plaintiff proved the defendant's negligence in putting up a guy wire that crossed and was in contact with the feed wire of a railway company; and the language of the opinion should be read in the light of the facts in proof. It may be, however, that the court intended to lay down a general rule in reference to companies using electricity upon a public street; and in that event, the case supports the plaintiff's argument. In Giraudi v. Electric Improvement Co., 107 Cal. 120, there was evidence of negligent construction; and in Nichols v. City, 35 Minn. 430, a telephone company had notice that its wires were obstructing travel, and failed to remove them after a reasonable time.
But, whatever may be the rule in other jurisdictions, the rule in Pennsylvania is, that in cases like the present the plaintiff must offer affirmative evidence that the defendant has been negligent. It would be a waste of time to cite more than two or three of the numerous cases enforcing this rule with regard to steam railways, whose right of passage conflicts with the similar right of a traveller on foot or by wagon at the crossing of a public road: Railway Co. v. Frantz, 127 Pa. 297; Ellis v. Railway Co., 138 Pa. 506; Childs v. Road Co., 150 Pa. 73. In principle, however, the doctrine now contended for is as applicable to such companies as to street railways. The only difference is one of degree, the street railway being more dangerous; but unless as a matter of policy this difference requires a difference in rule, it ought to be enough for the person injured at a crossing by a steam railroad, to prove the bare fact that he has been struck upon the crossing by the defendant's train. The presumption of negligence should arise at once, and with the explanation offered by the defendant should carry the whole controversy to the jury. As to steam railroads, however, it need not be argued that this is not the law of Pennsylvania. Neither need time be spent to establish the proposition, that it is not the law in actions for negligence against individuals or private corporations. In such suits, also, there is no presumption that the defendant has been negligent; the plaintiff must prove that...
To continue reading
Request your trial