McCully v. Clarke & Thaw

• Citation: 40 Pa. 399
• Parties: McCully <I>versus</I> Clarke & Thaw.
• Decision Date: 11 November 1861
• Court: Pennsylvania Supreme Court

40 Pa. 399

McCully versus Clarke & Thaw.

Supreme Court of Pennsylvania.

November 11, 1861.

ERROR to the District Court of Allegheny county.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

R. Woods, for plaintiff.—The first, fourth, and fifth points presented the proposition that the facts therein set forth, if true, constituted negligence per se, and by construction of law.

The court below treated this as a question of fact, and left it to the jury; and in this there was error: See Piggot v. Eastern Counties Railway Co., 54 E. C. L. Rep. 228; Toubenville v. Stamp, 1 Com. Rep. 32; 1 Salk. 2; 63 E. C. L. Rep. 353. The second point presented the same facts as the foregoing, with a reasonable qualification in asking the court to charge that, if not conclusive, they made out a primâ facie case in favour of the plaintiff, to be met only by showing that the extinguishing of the fire was out of defendants' power: 54 E. C. L. Rep. 228.

The third, fifth, and eighth points presented the proposition that there was no negligence on the part of the plaintiff; that the law had cast no duty on him which he did not perform. But the court below, instead of instructing the jury as to the duties of the plaintiff, from the omission of which negligence might be inferred, left it to them to determine what their duties were, by leaving them to decide whether he was guilty of negligence or not. To authorize this there was no evidence, unless the law required the plaintiff to go upon the premises and put out the fire himself. Notice to defendants of the existence of the fire was unnecessary: they were aware of it.

But plaintiff had not the right to enter upon defendants' lot, for the purpose of extinguishing this fire. Nor was it his duty: that devolved on defendants. If they failed to perform it, is plaintiff's omission to be interpreted into a neglect, which will disable him from recovery for their default? Pennsylvania Railroad Co. v. Ogier, 11 Casey 72.

The seventh point presented the proposition that it was defendants' duty to extinguish the fire on their own premises, at their own expense, without the aid of the plaintiff, which, for obvious reasons, should have been affirmed.

A. W. Loomis and C. B. Smith, for defendants.—The plaintiff cannot complain of anything which appears in the charge of the court below. It was as favourable as he could ask, for he had no right to recover unless the fire originated in the ruins of defendants' warehouse, nor unless they were guilty of negligence: Smith v. McCune, 24 Howard 403.

The qualification that if plaintiff's own want of reasonable care contributed to or was the occasion of the loss, he was not entitled to recover, is abundantly sustained by authority: Simpson v. Hand, 6 Wharton 321; Wynn v. Aland, 5 W. & S. 524; Railroad Company v. Steiner, 7 Harris 303; Butterfield v. Forrester, 11 East Rep. 60-1. To charge, as was requested, as matter of law, that there was or was not negligence, would have been erroneous: Peters v. Rylands, 8 Harris 501; Vaugn v. Menlove, 32 E. C. L. Rep. 468; 1 Hillard on Torts 132-3. But the whole case shows manifest negligence on the part of the plaintiff, if he thought there was any danger: he did nothing to guard against it, though he knew of the existence of the fire in defendants' coal-heap.

The instruction requested in the plaintiff's first, fourth, and fifth points, could not have been given without error. The points assume facts which are expressly disproved by the testimony as to the condition of the walls of the buildings; wholly ignore the efforts made by defendants to extinguish the fire; and take from the jury the right to make proper inferences from the fact that the coal-heap was allowed to remain on defendants' premises while on fire. No authority can be shown in support of the doctrine of "negligence by construction of law." This is ever a question for the jury, under all the facts of the case. The case of Piggot v. Eastern Counties Railway Co., 54 E. C. L. Rep. 228, when closely examined, is an authority against the plaintiff.

Nor was the second point sustained by the law or the facts of the case. Even if the facts were as is therein assumed, the instruction prayed for could not have been given. The question was for the jury, and not a legal proposition to be communicated to them by the court. The same remark applies to the third, fifth, and eighth points. The plaintiff was bound to the exercise of ordinary care and diligence, and if derelict in this duty he had no right to recover. If his property was in danger, he had a right to go on that of his neighbour to prevent the injury. The necessity of the act would have justified it, but he did nothing of the kind, and cannot throw the responsibility on those who were actively engaged in the performance of this duty. The parties were alike bound to guard against this injury. Railroad Company v. Ogier, 11 Casey 60, settles this, and also that it is only in extreme cases, and where there are no controverted facts, that the court will take the question of negligence from the jury. The application to the mayor by the plaintiff was not the duty which the law cast upon him, but, so far as this controversy is concerned, a nugatory act. The seventh assignment of error requires no discussion.

The opinion of the court was delivered, November 11th 1861, by STRONG, J.

No complaint is made of the instruction given to the jury in this case. None could be, with any shadow of reason. The charge was a clear, accurate, and comprehensive statement of the principles of law applicable to the facts of which evidence had been given. It is not alleged that it contained anything erroneous. The complaint here is, that the learned judge did not say more; that he did not take the facts away from the jury, and instruct as...