Hays v. Gallagher

• Decision Date: 21 October 1872
• Citation: 72 Pa. 136
• Court: Pennsylvania Supreme Court
• Parties: Hays <I>versus</I> Gallagher.

72 Pa. 136

Hays versus Gallagher.

Supreme Court of Pennsylvania.

October 12, 1871.

October 21, 1872.

October 12th 1871.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1871, No. 112.

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White & Slagle, for plaintiff in error.—To maintain an action for injuries caused by a defect in the highway, it must appear affirmatively, and the burden of proof is on the plaintiff to show that he was in the lawful use of the highway: Shearman & Redfield on Negligence, § 421, § 414 and note; Angell on Highways, § 291; 2 Hilliard on Torts, 503-5; Whitehead v. Phila., 2 Phila. Rep. 99; Farnum v. Concord, 2 N. Hamp. 292. As to the plaintiff's silence, &c., Logan v. Mathews, 6 Barr 417. The burden of proof is upon the plaintiff, so far, at least, as to make it the duty of the jury to give a verdict against him, if his freedom from contributory fault remains in doubt: Welling v. Judge, 40 Barb. 193; Waters v. Wing, 9 P. F. Smith 211.

Hampton & Dalzell, for defendant in error.—The defendant was bound to build and maintain the bridge so as to give to the public at that point a good and sufficient roadway: Phœnix v. Phœnixville Iron Company, 9 Wright 135; 1 Rolle Ab. 368, "Bridges," p. 2; Perley v. Chandler, 6 Mass. 454; Dygert v. Schenk, 23 Wendell 446; Woodring v. Forks Tp., 4 Casey 355.

It is not incumbent on the plaintiff to prove his exercise of the ordinary care to avoid the injury, but the proof of the want of it on the part of the plaintiff lies on the defendant. He who avers a fact in excuse of his own misfeasance, must prove it: Beatty v. Gilmore, 4 Harris 463; Waters v. Wing, 9 P. F. Smith 211. It was not negligence in the plaintiff to go on the bridge, even though he was aware of its unsafe condition: Humphreys v. Armstrong County, 6 P. F. Smith 204.

The opinion of the court was delivered, October 21st 1872, by SHARSWOOD, J.

It is unnecessary to consider the several assignments of error seriatim. There is nothing in any of them which requires discussion except the refusal of the court below to affirm the fifth point of the plaintiff in error, and the submission of the case to the jury upon the evidence.

It must be conceded that the bridge erected by the defendant over his coal railway, was at the time of the accident, by which the plaintiff below sustained injury, in an unsafe and dangerous condition — especially to travellers by night. Originally it was constructed with railings on both sides, but they had decayed or been torn away. The duty of repair was clearly on the plaintiff in error: Phœnixville v. Phœnix Iron Co., 9 Wright 135. Without these guards it was quite possible that a traveller on a dark night, with every care on his part, might mistake his course and walk over the side of the bridge. The cut was five or six feet deep, so that the fall would necessarily cause more or less injury. Even death might well result from such an accident. It was through the negligence of the defendant that this danger existed. Nor can there be any doubt upon the evidence that the injury suffered by the plaintiff below did arise in this way. He was found lying immediately under the bridge, much hurt, upon a very dark night — about midnight. He declared at the time that he had fallen from the bridge. It is true, however, that there was no evidence as to the precise circumstances of the accident. The plaintiff below himself was not examined as a witness, though he was present in court. It is maintained by the plaintiff in error that this evidence was not sufficient, as it did not show a case clear of contributory negligence.

In Beatty v. Gilmore, 4 Harris 463, it was held by this court that in such an action as this, if no facts are proved from which a deduction of want of ordinary care, on the part of the plaintiff, can be drawn, the presumption is against the defendant, whose misconduct rendered the accident possible. In that case it is remarked by Mr. Justice Bell that "when in the darkness and solitude of the night, one suffers grievous injury from the culpable commission or omission of another, the carelessness which would excuse ought certainly to be of a very gross character, made apparent by direct or circumstantial proof." There is nothing in Waters v. Wing, 9 P. F. Smith 211, which is inconsistent with this doctrine....