Baker v. Fehr

Decision Date28 March 1881
Citation97 Pa. 70
PartiesBaker <I>versus</I> Fehr et al.
CourtPennsylvania Supreme Court

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ. GREEN, J., absent

Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1880, No. 360.

Silas W. Pettit (with whom was John R. Read), for the plaintiff in error.—Where no facts have been shown from which negligence by the defendant causing the accident may reasonably be inferred, the question of negligence should not be submitted to the jury. Whether a given state of facts, admitted or proved, constitutes negligence, is a question of law to be declared by the court: Goshorn v. Smith, 8 W. N. C. 289; Catawissa Railroad Co. v. Armstrong, 2 P. F. Smith 282; Railroad Co. v. Stinger, 28 Id. 219; Gerety v. Railroad Co., 31 Id. 274; Hoag v. Railroad Co., 4 Norris 293; Philadelphia & Reading Railroad Co. v. Yerger, 23 P. F. Smith 121; Philadelphia & Reading Railroad Co. v. Heil, 5 W. N. C. 91; Clark v. Philadelphia & Reading Railroad Co., Id. 119; Pennsylvania Railroad Co. v. Fries, Id. 545; Hestonville Passenger Railway Co. v. Connell, 7 Norris 520. In this case the defendant was in the lawful use of the highway, driving at a moderate rate of speed, and he had no reason to anticipate that the deceased would suddenly place himself in a position of danger by jumping off the front platform of the car, directly in front of his team. On discovering the danger he hallooed to the deceased and used his utmost endeavors to stop, but the deceased, by his action in stepping against the mules, increased the danger and rendered the accident inevitable. Under the admitted facts, there was no evidence of negligence by the defendant, and the case should not have been submitted to the jury.

A. S. L. Shields, for the defendant in error, did not appear, and presented no paper-book.

Mr. Justice MERCUR delivered the opinion of the court, March 28th 1881.

This action was brought by the widow and children of one killed by an unfortunate accident. A right to recover rests on proving that negligence of the plaintiff in error caused the death, without contributory negligence of the person killed. The question now is, whether there was sufficient evidence of negligence on the part of the plaintiff in error to justify its submission to the jury.

The burden of proving the negligence is on the defendants in error: McCully v. Clarke & Thaw, 4 Wright 399; Railway Co. v. Hummell, 8 Id. 375; P. & R. Railroad Co. v. Yerger, 23 P. F. Smith 121.

This is not the case of a passenger killed or injured by a common carrier. Both parties to the accident were in the lawful use of a public street in this city. Each owed substantially the same duty to the other. That duty was to use the street with reasonable and ordinary care. Each was justified in assuming that the other would so use it. What is negligence and what is ordinary care must generally be submitted to the jury. This is so, if there be any dispute as to the acts claimed to establish the alleged negligence; but negligence is not to be found without evidence. It is not to be presumed from the mere fact of the occurrence of an accident causing injury or death: Gramlich v. Wurst et al., 5 Norris 74. Negligence is a question for the jury, if there be reasonable doubt as to the facts tending to prove it, or as to the just inferences to be drawn therefrom: McKee v. Bidwell, 24 P. F. Smith 218.

The province of the jury is to find facts. If the facts be admitted or ascertained, it is the duty of the court to declare the law thereon: Catawissa Railroad Co. v. Armstrong, 2 P. F. Smith 282; Philada. & Reading Railroad Co. v. Yerger, supra; Goshorn v. Smith, 8 W. N. C. 289.

The main question in this case arises under the seventh assignment. It is whether there was any evidence of negligence on the part of the plaintiff in error to be submitted to the jury? If there was, no just complaint can be made to the charge of the court.

This leads us to an examination of the evidence. There is no substantial conflict in the testimony of the witnesses. Fehr was a passenger in a street railway car moving down Sixth street; Gerlach was driving an ice-wagon of the plaintiff in error. It was in the rear of the street car, and moving in the same direction, at a rate of from four to six miles an hour. The car stopped just south of Walnut street. The driver of the wagon continued on for the purpose of passing the car. As his mules came opposite the car, Fehr, with a market basket on his arm, got off the front platform. A collision resulted between him and the wagon, causing the injury which resulted in his death.

On the trial, five persons who were eye-witnesses to the transaction testified. Two were called by the defendants in error, and three by ...

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