Hershinger v. Pennsylvania R. Co.

• Decision Date: 11 May 1904
• Docket Number: 117-1903
• Citation: 25 Pa.Super. 147
• Parties: Hershinger v. Pennsylvania Railroad Company, Appellant
• Court: Pennsylvania Superior Court

25 Pa.Super. 147

Hershinger v. Pennsylvania Railroad Company, Appellant

No. 117-1903

Superior Court of Pennsylvania

May 11, 1904

Argued October 15, 1903

Appeal by defendant, from judgment of C.P. No. 5, Phila. Co.-1902 No. 1178, on verdict for plaintiff in case of Edwin Hershinger, by his next friend, Ida Hershinger, his Mother v. Pennsylvania Railroad Company.

Trespass to recover damages for personal injuries. Before Ralston, J.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for plaintiff for $ 300. Defendant appealed.

Errors assigned were portion of charge quoted in opinion of the Superior Court; refusal of judgment for defendant non obstante veredicto.

E. J Sellers, of Sellers & Rhoades, for appellant. -- To enable the plaintiff to recover he should establish the relation of master and servant between the driver and the defendant Hart v. New Orleans & Carolina R. R. Co., 36 Am.Dec. 689.

It will be observed that the testimony of the plaintiff failed to establish the ownership of the hansom, nor did that of the defendant admit it. A stranger to the owner of the horse and carriage may obtain possession of the same, and by negligent driving, injure another, but the person thus injured cannot recover against the owner: Bard & Wenrich v. Yohn, 26 Pa. 482.

T. Foster Thomas and William W. Porter, for appellee. -- The plaintiff proved that the cab that caused the injury bore the name of defendant company. The defense offered no evidence at all to rebut this prima facie proof of the relation of master and servant between the cab driver and defendant company.

This required that the case should be submitted to the jury: Doherty v. Lord, 8 Misc. 227 (28 N.Y.S. 720); Edgeworth v. Wood, 58 N.J.L. 463 (33 A. 940); Schulte v. Holliday, 54 Mich. 73 (19 N.W. 752); Birnbaum v. Lord, 7 Misc. 493 (28 N.Y.S. 17); Norris v. Kohler, 41 N.Y. 42; Seaman v. Koehler, 122 N.Y. 646 (25 N.E. 353); Perlstein v. Express Co. (59 N.E. 194), 177 Mass. 530; Tuomey v. O'Reilly, 142 N.Y. 678 (37 N.E. 825); Spitzer v. Nassau Newspaper Delivery Exp. Co. (45 N.Y.S. 682), 20 Misc. 327; Howard v. Ludwig (67 N.Y.S. 1095), 57 A.D. 94; Baldwin v. Abraham (67 N.Y.S. 1079), 57 A.D. 67; Stables v. Eley, 1 C. & P. 614.

Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ. Smith, J., dissenting. Orlady and Morrison, JJ., concur in this.

OPINION

BEAVER, J.

A horse attached to a hansom, bearing a name inscribed thereon was driven southward on the right side of Broad street. The plaintiff was upon a bicycle on the right side of the street going north. When nearly opposite each other, the driver of the hansom veered suddenly to the left, intending doubtless to water his horse at a fountain in the neighborhood. A collision occurred by which the plaintiff sustained bodily injuries. Hence this suit.

The name borne upon the hansom does not clearly appear in the evidence, as printed by the appellant. The testimony of the plaintiff is the only evidence relating to this question, which is as follows:"

Q. Tell what occurred. A. When I came to a little below Spring Garden street, I saw a Pennsylvania Railroad cab coming down.

Q. How do you know it was a Pennsylvania Railroad cab?

A. Because it had a name on it.

Q. On it?

A. Yes, sir.

Q. What did the driver wear?

A. A brown suit." At the conclusion of the testimony, however, defendant moved the court for binding instructions in favor of the defendant and, after argument, this statement, evidently made by the court, occurs: " It is admitted that the only evidence that the driver was a servant of the defendant was the fact that the hansom had the name of the defendant company on it. The court reserves the question whether this is sufficient evidence that the driver was the servant of the defendant company. The court also reserves the question whether there is any evidence to be submitted to the jury." In the appellant's paper-book, in the statement of the question involved, it is assumed that the name of the appellant was upon the hansom and, in the history of the case, it is stated: " It was admitted that the only evidence that the driver was a servant of defendant was the fact that the hansom had the name of appellant upon it."

1. The first error assigned is as to the following instruction to the jury: " The court has ruled there was sufficient evidence that its driver was the servant of the defendant corporation and, as there was no evidence presented in contradiction of that prima facie case, you may consider the case, if you believe that testimony, as one where the driver was the servant of the defendant corporation." We will consider this assignment in connection with the first proposition of the second assignment, in which the failure of the court below to enter judgment for defendant, non obstante veredicto, is assigned for error, which is " 1. That plaintiff failed to establish the relation of master and servant between the driver of the hansom and defendant."

Assuming that the hansom bore the name of the defendant company, in the absence of any evidence of ownership to the contrary, this was in itself sufficient to authorize the jury, under proper instructions, to draw an inference of ownership, which, if drawn by them, was sufficient to establish prima facie that the hansom, being owned by the company, was in its possession and that whoever was driving it was doing so for the company. This would have been correct if the jury had been allowed first to draw the inference from the fact of the inscription upon the hansom, that it belonged to the defendant corporation. We do not know what effect this instruction may have had upon the verdict of the jury. It was not absolutely incumbent upon them to draw the inference of ownership and they might possibly have found the other way. The instruction was, therefore, to that extent erroneous. This will be more apparent in the consideration of the authorities which follow upon another branch of the case.

2. The appellant requests " that the judgment be reversed without a venire or else judgment for defendant, non obstante veredicto, be rendered." We have carefully considered this request and are unable to see how the judgment can be reversed, without a retrial before a jury. This seems to us to be apparent from a study of the authorities, cited by both appellant and appellee, which follow.

The appellant (defendant) refers to Hart v. New Orleans & Carrollton Railroad Co., 36 Am.Dec. 889, as an authority for the proposition that the mere name of a corporation painted upon a public conveyance is not prima facie evidence of ownership but in that case an omnibus, the negligence of whose driver caused the injuries for which suit was brought, contained the name " Carrollton" and this we think was very properly held by the appellate court not to have been " sufficient or probable evidence of property in the defendants," whose corporate name was " The New Orleans and Carrollton Railroad Company." Later on in the same case Judge Garland, who delivered the opinion, says: " The plaintiff then asked A. E. Crane if it were not within his knowledge at the time the damage was done that the defendants were generally reputed and known as the owners of the omnibus in question, and whether it was a matter of public notoriety. To these questions the defendants objected, on the ground that it was hearsay testimony. The objection was sustained and the plaintiff again excepted. We think the judge again erred in rejecting this testimony. It was not necessary that the plaintiff should prove a legal title to the omnibus in the defendants, but only make out a prima facie right; and it would then rest with them to satisfy the jury that public reputation was wrong or to show, what would not be very difficult in a case of this kind, that the omnibus belonged to some other corporation, company or individual." This seems to be a plain recognition of the principle for which the plaintiff here contends and that is further sustained by Edgeworth v. Wood, 58 N.J.L. 463 (33 A. 940), a case cited by the appellee. Witnesses there had proved that the name of the United States Express Company was painted upon a wagon which caused the injury for which damages were claimed and, in commenting thereupon, the court said: " Considering the great improbability that any other owner of a wagon would thus paint and mark it, a plain inference could be drawn from the evidence that the wagon in question was in the ownership of the company. If that inference be drawn, it is sufficient to establish prima facie that the wagon, being owned by the company, was in its possession and that whoever was driving it was doing so for the company."

The foundation for at least one branch of the proposition contained in these decisions is laid in Joyce v. Capel et al., 8 C. & P. 370; 34 E.C.L. 433. In that case the action was for damages for injury to a tug boat of the plaintiff caused by the negligence of the bargeman in charge of a barge belonging to the defendants. The barge bore the name Capel No. 1,055, and it was proved that the number 1,055 was the number belonging to the barge of the defendants. It was contended on the part of the defendants that it was not shown that the barge was navigated by the defendants' servant at the time. It might have been taken by some one else or it might have been on hire. Lord Denman, C. J., said: " If the barge was on hire, that will be for the defendants; there is prima facie evidence that the bargeman was their servant, till they explain it."

The principle contended for is not unreasonable for, if the vehicle did not belong to the defendant and the driver of it was not its agent, it could doubtless have easily so...