Ahern v. Melvin

• Decision Date: 19 November 1901
• Docket Number: 270-1901
• Citation: 21 Pa.Super. 462
• Parties: Ahern v. Melvin, Appellant
• Court: Pennsylvania Superior Court

21 Pa.Super. 462

Ahern v. Melvin, Appellant

No. 270-1901

Superior Court of Pennsylvania

November 19, 1901

Argued October 8, 1902

Appeal by defendant, from judgment of C.P. No. 4, Phila. Co.-1900 No. 290, on verdict for plaintiff in case of Julia Ahern v Frederick J. Melvin.

Trespass to recover damages for personal injuries. Before Willson, J.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for plaintiff for $ 1,000. Defendant appealed.

Error assigned was in refusing binding instructions for defendant.

Affirmed.

John G. Johnson, with him J. C. Stillwell, for appellant. -- If, from the facts established by the plaintiff, who claims reparation for alleged negligence, an inference of innocence may be drawn, as well as an inference of negligence, there is no proof of negligence. The facts must be such as tend to prove the negligence and exclude the inference of innocence. Otherwise, a jury, from a state of facts not establishing negligence, would be allowed to guess that such negligence existed.

In the present case there is no balance of probabilities, the inference of innocence can be drawn equally well with that of negligence: Cotton v. Wood, 98 English Common Law Rep. 570; Ruppert v. Brooklyn Heights R. R. Co., 154 N.Y. 90 (57 N.E. 971); Boehm v. Bethlehem Borough, 4 Pa.Super. 389.

While not liable for the wilful and independent trespass of his servant, a master is responsible civilly for the manner in which the servant does the work that he is employed to do; and it is the character of the employment when the act is done and not the private instruction to the servant, by which the master's liability is to be determined: McClung v. Dearborne, 134 Pa. 396; Brunner v. American Telegraph, etc., Co., 151 Pa. 447; Cosgrove v. Ogden, 49 N.Y. 255; Marrier v. St. Paul, etc., Ry. Co., 17 N.W. (Minn.) 952; East End Oil Co. v. Penna. Torpedo Co., 190 Pa. 350; Spees v. Boggs, 198 Pa. 112; Alexander v. Pennsylvania Water Co., 201 Pa. 252; Guille v. Campbell, 200 Pa. 119.

Thomas A. Fahy, with him Walter Thomas Fahy, for appellee. -- The law is well settled that where a person lawfully upon the highway is struck by an object that falls from defendant's premises, the doctrine of res ipsa loquitur applies, negligence is presumed, and to escape liability, the burden of explaining the accident and its cause is upon the defendant: Byrne v. Boadle, 2 H. & C. Exch. 722; Clare v. National City Bank of New York, 1 Sweeney (N Y.), 539; Maher v. Manhattan Ry. Co., 6 N.Y.S. 309; Bridges v. North London Ry. Co., L. R. 6 Q. B. 377; Shafer v. Lacock, 168 Pa. 497.

Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.

OPINION

W. D. PORTER, J.

The only ruling of the learned court below which is assigned for error is the refusal to give a binding instruction in favor of the defendant. The contention of the appellant is that there was no evidence from which a jury ought to have been permitted to infer negligence on the part of defendant or his servants. The defendant was the proprietor of the Hotel Hanover, the rear portion of which abutted on the south side of Appletree street. Each floor of the hotel, above the first, had, upon that side of the building, a narrow balcony, constructed of iron in the manner usual to fire escapes, which projected over the street. A fire tower, in which was a staircase, extended from the bottom to the top of the building. From this there were no doors leading to the interior of the building, but there was at each floor a door which led out onto the balcony which communicated with that floor, and from each balcony a second door opened into the building, so that at each floor a person could pass out of the building onto the balcony and through another door leading into the fire tower. The balcony at the second floor of the hotel was about twenty feet above Appletree street, and the door which led from it into the main building gave direct communication to the kitchen of the hotel. The doors opening onto the upper balconies, opened from corridors to which the guests of the hotel had access. The windows of the second floor opened from the defendant's kitchen, and those of the floors above the second, from the rooms of guests of the hotel.

The plaintiff was passing along the side of Appletree street next to the defendant's premises and was struck on the top of the head and seriously injured by a large paper bag partially filled with potato parings, cantaloupe skins and seeds and the skins of other vegetables. The plaintiff testified that the bag came from the iron balcony about twenty feet above the street; if this was so, it was the balcony from which a door led directly into defendant's kitchen. Another witness testified that he saw the bag which struck the plaintiff come from that balcony, and that he believed it was thrown by a woman. His belief as to who threw the bag seems to have been a mere opinion, and was not competent evidence. But he gave the facts upon which that opinion was founded and those facts were proper for the consideration of the jury. He testified that immediately after the bag came from the balcony he saw a woman, dressed as a servant and wearing an apron, run from the balcony into the building. This witness further testified that he saw standing upon this...