Clow v. Pittsburgh Traction Co.

• Decision Date: 13 November 1893
• Docket Number: 61
• Citation: 27 A. 1004,158 Pa. 410
• Parties: Clow v. Pittsburgh Traction Co., Appellant
• Court: Pennsylvania Supreme Court

27 A. 1004

158 Pa. 410

Clow v. Pittsburgh Traction Co., Appellant

No. 61

Supreme Court of Pennsylvania

November 13, 1893

Argued October 23, 1893

Appeal, No. 61, Oct. T., 1893, by defendant, from judgment of C.P. No. 3, AlleghenyCo., Feb. T., 1892, No. 721, on verdict for plaintiff, Mary Clow.

Trespass for personal injuries.Before McCLUNG, J.

At the trial it appeared that on May 16, 1891, plaintiff was a passenger on one of defendant's cable cars on Fifth avenue, Pittsburgh.When the car reached the vault in front of the company's power house near Washington street it was suddenly and without warning stopped, and plaintiff was thrown forward, sustaining fracture of the clavicle and other injuries.Evidence for plaintiff showed that the glass in the windows of the car was broken, and one witness testified that the car was badly wrecked.No explanation was given as to the cause of the accident.

The court charged in part as follows:

"[If you find that the accident did occur to the car of the defendant by reason of a collision, or of a defect in the roadway, or in the machinery or apparatus by which the car was run, then the law presumes that the defendant was negligent, and it is for the defendant to explain the accident in some way consistent with his claim of care, and if he does not explain it, the presumption of negligence remains.In this casethe defendant has not undertaken to explain how the accident occurred, so that if you find it occurred in this way the presumption of negligence arises and you proceed to the consideration of the question as to whether this young lady was injured in that accident, and, if so, to what extent.]"[4]

Defendant's points were as follows:

"1.There is no sufficient proof that the injuries complained of were caused by the negligence of the defendant, and the verdict must be for the defendant."Refused. [2]

2.Request for binding instructions.Refused. [3]

Verdict and judgment for plaintiff for $7,750.Defendant appealed.

Errors assigned were (1) the language of the court in refusing a continuance, quoting it as in syllabus; (2-4) instructions, quoting them.

Judgment affirmed.

Geo. C. Wilson, for appellant.-- A person who asserts he has received an injury from defendant's negligence must prove it, and if no such proof be adduced, it is error to submit to the jury whether there was negligence or not: McCully v. Clark,40 Pa. 399;R.R. v. Heil,5 W.N. 93;Clark v. Ry. Co.,5 W.N. 119;Wiebrand v. Eighth Ave.Ry. Co., 3 Bosw. 313;R.R. v. Ritchie,102 Pa. 425;Napheys v. R.R.,90 Pa. 135;P. & R.R.R. v. Yerger,73 Pa. 121;Goshorn v. Smith,92 Pa. 435.It is not permissible to guess at the cause of an injury and assume that it was something for which defendant was responsible: Reese v. Clark, 146 Pa. 465.

J. McF.Carpenter, for appellee, not heard, cited: Tassey v Church, 4 W. & S. 141;Laing v. Colder,8 Pa. 479...