Hartig v. American Ice Co.

• Decision Date: 19 May 1927
• Docket Number: 190
• Parties: Hartig, Appellant, v. American Ice Co. et al
• Court: Pennsylvania Supreme Court

137 A. 867

290 Pa. 21

Hartig, Appellant, v. American Ice Co. et al

No. 190

Supreme Court of Pennsylvania

May 19, 1927

Argued April 20, 1927

Appeal, No. 190, Jan. T., 1927, by plaintiff, from judgment of C.P. No. 3, Phila. Co., June T., 1925, No. 2131, for defendant n.o.v., in case of Herman S. Hartig v. American Ice Co., Inc., and William McCoach et al. Reversed.

Trespass for personal injuries. Before DAVIS, J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $7,000 on which judgment was entered for defendant n.o.v. Plaintiff appealed.

Error assigned, inter alia, was judgment for defendant n.o.v quoting record.

The judgment is reversed and it is ordered that the motion for a new trial be reinstated to be disposed of as right and justice under the law may require.

Harry A. Gorson, for appellant. -- The use of a business vehicle is presumed to be for its owner, and, when damage has been caused by the negligent operation thereof, a jury is the proper tribunal to pass on the credibility of oral evidence submitted to repel such presumption: Gojkovic v Wageley, 278 Pa. 488; Sieber v. Ice Cream Co., 276 Pa. 340.

Frank R. Savidge, for appellee. -- If, in the last analysis, the testimony of plaintiff as to the ownership and operation of the truck can be said to amount to a mere scintilla then under the decisions a mere scintilla of evidence is insufficient to take the case to the jury: Fissell v. Hines, Director, 78 Pa.Super. 179.

Before MOSCHZISKER, C.J., FRAZER, WALLING, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. CHIEF JUSTICE MOSCHZISKER:

Plaintiff, Herman S. Hartig, was injured while working as an employee of a subcontractor in the construction of an ice plant for defendant, the American Ice Company. On the day of the accident, he was engaged in mixing paints on the first floor, some seven feet back from an open or exposed side of the building; this floor was about six feet above the ground level. Sometime before, an automobile truck loaded with iron pipe had taken a position along this open side with its rear against the floor, near plaintiff. Hartig had his back to the truck, and, as he arose from a stooping posture, he was struck and injured by a piece of large pipe which the truck driver was unloading by pushing it from his car, lengthwise. Plaintiff brought this action against defendant ice company and also against two others, the general contractor and the plumbing subcontractor. At the close of plaintiff's testimony, nonsuits were entered as to the latter parties, who were not shown to have had anything to do with the accident. A verdict was rendered against the remaining defendant, but, notwithstanding this, the court below subsequently entered judgment in its favor, and plaintiff appealed.

Hartig testified that the truck from which the pipe was being unloaded bore the name of defendant ice company. This testimony, and the circumstances that the accident occurred on defendant company's premises and in the course of reconstruction of their building, that the driver of the truck, who unloaded the pipe, had been seen operating the car when it was driven into the yard, and some other testimony, on defendant's side, from which the inference might be drawn that the pipe belonged to the latter, were the only facts connecting that company or its employees with the injury. Defendant, on the other hand, contended, and presented evidence tending to show, that it took no active part in the construction work, that its trucks did not haul pipes to the building, that it did not own a truck of the type described by plaintiff, and not more than one approaching that type; and, as to this last, defendant produced testimony which, if believed, might exclude it from consideration. These proofs and evidence to sustain an affirmative defense of the statute of limitations, to which we shall refer later and more at large, constituted defendant's case.

The court below entered judgment for defendant, n.o.v., on the ground that plaintiff had failed to show that the man whose negligence caused the injury was an employee of defendant company, acting within the scope of his employment; but plaintiff contends that the presence of defendant's name on the truck raised presumptions that it belonged to defendant and was being employed in the latter's business, and that these presumptions were sufficient of themselves to take the case to the jury. Defendant, on the contrary, claims that the mere presence of its name on the truck was not enough to warrant submitting the issues involved to the jury, in the absence of other supporting testimony, of which, it claims, there was none; but, in so contending, defendant entirely overlooks the other features of plaintiff's case to which we have called attention in the immediately preceding paragraph of this opinion. Defendant contends also that, on the evidence produced by it, the trial judge could have given binding instructions, therefore the court below was warranted in entering judgment in its favor notwithstanding the verdict for defendant.

In Holsheimer v. Lit Brothers, 262 Pa. 150, 153-4, a case somewhat like the one at bar, so far as the question of the ownership of the automobile involved is concerned, we said: "This . . . presumptive evidence [of the ownership of the truck and that it was in charge of the owner's employee] was . . . quite sufficient to carry the case to the jury . . . [and it did not have] any less probative force than it would have had, had it rested on direct evidence. It shifted the burden of proof as to this one issue so that the burden rested thereafter upon . . . defendant. . . . The only question we have to consider is whether the evidence introduced by the defendant was of such conclusive and unimpeachable nature as would have justified binding instructions in its favor. . . . The evidence . . . is not so exceptional in character as to take the case out of the operation of the general rule as here applied."

In Shaughnessy v. Director Gen., 274 Pa. 413, 416, where the presumption was of liability on part of a railroad company for injuries to a passenger, we said: "The rebuttable presumption of liability has the same probative force as if established by direct evidence. It stands as a fact, except as overcome by testimony produced by defendant. . . . [The latter] claims to have established its defense by testimony so conclusive as to justify binding instructions in its favor; but . . . the question of the credibility of the witnesses . . . still remained for the determination of the jury, under such circumstances." The opinion continues, "Ordinarily . . . capricious verdicts are to be cured by the grant of a new trial, and it is only where no dispute appears in the evidence, or in the inferences which may possibly be drawn therefrom, that binding instructions can be given, where the finding is necessarily based on parol testimony."

In Gojkovic v. Wageley, 278 Pa. 488, 490, we said that, "The use of a business vehicle is presumed to be for its owner, and, when damage has been caused by the negligent operation thereof, a jury is the proper tribunal to pass upon the credibility of oral evidence submitted to repel such presumption. . . . Whether such presumption has been overcome by oral testimony is for the jury. . . . A rebuttable presumption of liability has the same probative force as if established by direct evidence, and it is for the jury to pass upon the credibility of witnesses offered to repel such presumption."

In Ford v. Dick, 288 Pa. 140, 146, citing Kelly v. Director General, 274 Pa. 470, 474, 475, and other cases, we recently said that, where a presumption in favor of a party entitles him to have his case submitted to the triers of facts, it cannot be withdrawn from them merely because other evidence tends to rebut the presumption in his favor, even though the evidence relied on for that purpose may be very strong; that those who see and hear the witnesses are best situated to judge the value of their testimony, and, while the force of the evidence may be sufficient to convince them that the presumption in favor of plaintiff has been repelled, yet, before they can come to this conclusion, they must consider the circumstances under which the repelling witnesses testify. Therefore, whether the presumption is rebutted is for the triers of facts, unless the evidence to the contrary is clear, positive, credible, uncontradicted and so indisputable in weight and amount as to justify the court in holding that a verdict against it must be set aside as a matter of law.

The case just mentioned and Grimes v. Penna. R.R. Co. (opinion by Justice SADLER, 289 Pa. 320) contain our latest pronouncements on the subject in hand. In the last named opinion we said there was a presumption that plaintiff's decedent had "used due care and caution to protect himself," adding, "though this presumption is rebuttable, yet it is still a question for the jury to determine this fact, though the evidence to the contrary be uncontradicted, where dependent solely on the oral testimony of witnesses, for it is essential that their credibility be passed upon," citing Schmidt v. P. & R.R.R., 244 Pa. 205; Shaughnessy v. Director General, supra; Spear v. R.R., 119 Pa. 61; McCafferty v. P.R.R., 193 Pa. 339; Doud v. Director General, 269 Pa. 182; Holzheimer v. Lit Bros., supra; Gojkovic v. Wageley, supra.

In Grimes v. Pa. R.R. Co., however, we state and apply the following important qualification of the general rule that the presumptions in plaintiff's favor carry his case to the jury, "If [on defendant's side] there be, in addition to oral testimony, indisputable physical conditions indicated by actual measurements, maps or photographs, the...