Allen v. Kingston Coal Co.
| Decision Date | 08 May 1905 |
| Docket Number | 57 |
| Citation | 61 A. 572,212 Pa. 54 |
| Parties | Allen, Appellant, v. Kingston Coal Company |
| Court | Pennsylvania Supreme Court |
Argued April 12, 1905
Appeal No. 57, Jan. T., 1905, by plaintiff, from order of C.P Luzerne Co., May T., 1902, No. 283, refusing to take off compulsory nonsuit in case of Prudence Allen v. The Kingston Coal Company. Affirmed.
Trespass to recover damages for death of plaintiff's husband. Before LYNCH, P.J.
The opinion of the Supreme Court states the case.
Error assigned was refusal to take off nonsuit.
Judgment affirmed.
W Alfred Valentine, with him Edward A. Lynch, for appellant.
Anthony L. Williams and Henry W. Palmer, for appellee.
Before MITCHELL, C.J., BROWN, MESTREZAT, POTTER and ELKIN, JJ.
There was no evidence that plaintiff's husband came to his death through the negligence of the defendant. The substance of the testimony is that he was found dead just at the mine door with injuries on his body that seemed to indicate that he had been crushed. The apparent elements of danger were the sides of the gangway, the loaded coal cars, and the mine door which was kept closed by a strong pressure of air forced in for ventilation. Which of these elements, if any, or what combination of them, caused his death was wholly conjectural, and none of them implied any negligence on the part of the defendant. Appellant's theory, as stated by her counsel, was that "the accident that caused her husband's death, and which was the only theory advanced at the trial, was that because of the negligence of the defendant company, he had been caught between the side of the passageway at the main door, and the side of a moving car, and squeezed to death." But conceding this as the most probable manner of his death it does not tend to show negligence of the defendant. The deceased may have slipped and fallen off his car, or jumped off, or have got off safely and yet been caught by the door before he had a secure hold of it to keep it open. His own failure in this respect is quite as probable as any other hypothesis. The doctrine res ipsa loquitur, dangerous and uncertain at best, is never to be applied except where it not only supports the conclusion contended for, but also reasonably excludes every other: Oil Co. v. Penna. Torpedo Co., 190 Pa. 350; Alexander v. Penna. Water Co., 201 Pa. 252.
Appellant argues that the plaintiff is entitled to the presumption that deceased was innocent of negligence. True, but so is the defendant, and the presumptions are equally balanced. Negligence contributory or other, is not to be...
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