Douds v. Beaver Valley Traction Co.

• Decision Date: 16 July 1913
• Docket Number: 162-1913
• Citation: 54 Pa.Super. 477
• Parties: Douds, Appellant, v. Beaver Valley Traction Company
• Court: Pennsylvania Superior Court

54 Pa.Super. 477

Douds, Appellant, v. Beaver Valley Traction Company

No. 162-1913

Superior Court of Pennsylvania

July 16, 1913

Argued May 14, 1913

Appeal by plaintiffs, from judgment of C.P. Beaver Co.-1912, No 341, for defendant n. o. v. in case of Carl R. and Oliver V Douds, partners trading as Douds Brothers, v. Beaver Valley Traction Company.

Trespass for injuries to an automobile. Before Holt, P. J.

At the trial the jury returned a verdict for plaintiff. Subsequently the court entered judgment for defendant n. o. v.

Error assigned was in entering judgment for defendant n. o. v.

Wm. A McConnell, for appellants, cited: Devlin v. Beacon Light Co., 198 Pa. 583; Philadelphia, etc., R. R. Co. v Alvord, 128 Pa. 42; Citizens' Pass. Ry. Co. v. Foxley, 107 Pa. 537.

D. A. Nelson, for appellee, cited: Lanning v. Rys. Co., 229 Pa. 575; Aument v. Tel. Co., 28 Pa.Super. 610; Patterson Coal & Supply Co. v. Rys. Co., 37 Pa.Super. 212; Kepner v. Traction Co., 183 Pa. 24.

Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.

OPINION

MORRISON, J.

This is an action in trespass for the recovery of damages for injury to plaintiffs' automobile. On November 22, 1911, the plaintiffs were the owners of an automobile and at the same time the defendant company operated a street railway in the borough of Freedom, Beaver county. In the operation of this street car line the defendant had suspended over and along a public highway in said borough, known as Third avenue, a trolley wire charged with electricity. While Oliver V. Douds on November 22, 1911, was traveling along the public highway in one of plaintiffs' automobiles, with a street car following behind him on the same track, the trolley wire fell, striking the driver on the head, and the wire becoming entangled in the wheels of the automobile, threw the vehicle to the side of the road wrecking it so that the plaintiffs averred that they sustained damages in the sum of about $ 400. The case was tried before the court and a jury and resulted in a verdict in favor of the plaintiffs for $ 403.50. At the trial the defendant's counsel asked for a binding instruction in favor of the defendant which question was reserved for answer upon motion for judgment non obstante veredicto. Subsequently, on motion, argument and consideration the learned court granted judgment in favor of the defendant non obstante veredicto. In support of that judgment the court, inter alia, used the following language: " The burden was on the plaintiffs to prove that the defendant's trolley wire, which fell and caused the damage to the plaintiffs' automobile, came down through the negligence of the defendant company. The plaintiffs offered no evidence, whatsoever, as to the cause of the breaking of the wire, except that a piece of wire found near the scene of the accident the next morning after the defendant's trolley wire had been repaired was somewhat worn and burnt; but the plaintiffs' own evidence, and the uncontradicted evidence of the witnesses for the defendant was to the effect that the trolley wire may have been burnt or fused after it broke and fell upon the automobile and the rails of the defendant's tracks. The testimony of the defendant's witnesses, which was uncontradicted, was to the effect that the break which caused the trolley wire to fall was not the severing of the trolley wire itself but a parting of a sleeve which contained the ends of two parts of the trolley wire, and that the fracture bore evidence of a fresh break. The evidence also showed that the construction at or near the point of the accident was better than the ordinary construction, and that the line had been inspected by employees of the defendant company at frequent intervals. We are not, therefore, satisfied that there was any evidence of negligence on the part of the defendant entitling the plaintiffs to recover....