Mensch v. Pennsylvania R. Co.

• Decision Date: 03 October 1892
• Docket Number: 63
• Citation: 150 Pa. 598,25 A. 31
• Parties: Mensch, Appellant, v. Pa. R.R. Co
• Court: Pennsylvania Supreme Court

25 A. 31

150 Pa. 598

Mensch, Appellant, v. Pa. R.R. Co

No. 63

Supreme Court of Pennsylvania

October 3, 1892

Argued April 18, 1892

Appeal, No. 63, Jan. T., 1892, by plaintiff, George E Mensch, from judgment of C.P. Centre Co., Jan. T., 1890, No 28, on verdict for defendant.

Trespass by employee for injury caused by defect in car.

The material facts as they appeared at the trial before FURST, P.J., are stated in the opinion of the Supreme Court. Plaintiff was a brakeman and the injury was caused by a projecting bolt, fully described in the evidence quoted in the opinion.

After plaintiff's evidence was in, defendant moved for a nonsuit, which being refused, D. R. Jacoby, the general yard master of defendant's yards at Sunbury, was called and testified, by reference to a book and slip, containing the record of incoming and out-going trains, that the car which caused the accident arrived at the Sunbury yards Nov. 26, 1887, and left Nov. 28; that cars were inspected every day they remained in the yard. Other witnesses testified to the thorough character of the inspection, but not of this particular car.

Plaintiff moved to strike out the testimony of Jacoby, and [defendant, under objection and exception, gave in evidence the book and slip containing the record of the trains.] To lay the ground for this evidence the witness testified that the record was made by the clerks in the office, who took the numbers passing along the track, that the clerks who made them were still in the office, and that the records were kept there on file under the control of the witness.

The court charged the jury as follows, inter alia:

"Therefore, it not appearing that the railroad company employed insufficient or incompetent inspectors or that it had any knowledge of their incompetency, and it appearing that this car went through the yard at Sunbury immediately prior to the conveyance of the load of coal to Pleasant Gap, we say to you that there is no evidence in this case affecting the defendant with any knowledge of the particular defect in this car on Dec. 5, 1887 . . . and, having this view of the case, we are compelled to say to you that the verdict must be for the defendant." [2]

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were, (1) ruling on evidence, quoting the evidence but not the bill of exception; (2) instructions, quoting them; and (3) directing verdict for defendant.

Judgment affirmed.

John H. Orvis, with him C. M. Bower and Ellis L. Orvis, for appellant. -- The company's books were not evidence: 1 Gr. Ev., § 1,493; Com. v. Woelper, 3 S. & R. 28; Thomas v. Wright, 9 S. & R. 87; Spalding v. Saxton, 6 Watts, 338; without due proof of the entries: Stoever v. Whitman, 6 Bin. 416; Com. v. Switzer, 134 Pa. 383.

It being the duty of defendant to furnish cars in a safe condition, the dangerous condition of the car at the time of the accident is prima facie evidence of negligence, and if unexplained would require a jury to find negligence. Where a railroad car is defective, the burden of disproving negligence is on the company: Empire Co. v. Wamsutta Co., 63 Pa. 14; Leech v. The Miner, 1 Phila. 144. Intemperate habits of conductor raises presumption of negligence until rebutted: Pa. R.R. v. Books, 57 Pa. 339. Alterations of appliances after accident, are admissible: R.R. v. McElwee, 67 Pa. 311; McKee v. Bidwell, 74 Pa. 218. If there is evidence from which negligence may be inferred it is for the jury: Neslie v. R.R., 113 Pa. 300; Craven v. R.R., 46 Leg. Int. 108; no matter how strong the countervailing proof: R.R. v. Foxley, 107 Pa. 537.

Where a railroad company ought to know of a defect, it is negligence not to know and remedy it: Bier v. Standard Mfg. Co., 130 Pa. 446. A railroad company owes its employees the duty of regular inspection of cars: R.R. v. Huber, 128 Pa. 63. This car remained at Pleasant Gap siding over a week, and, from the theory of defendant's own witnesses, this defect must have existed for that length of time. It was not a latent defect, but could have been discovered by even a casual inspection. No evidence was offered as to inspection on this branch road. Whether provision as to inspection is reasonable and adequate is for the jury under the facts of each case: R.R. v. Hughes, 119 Pa. 315. It will not do to say that the failure to inspect would be the negligence of a fellow-workman for which the company would not be liable, under R.R. v. Hughes, 119 Pa. 315. There was no evidence that any car inspector had been negligent, and negligence of a fellow-servant is never presumed. The doctrine that a workman assumes the risk of the negligence of fellow-workmen was pushed to the outer verge in Canal Co. v. Carroll, 89 Pa. 374. The interests of all parties demand that the rule be not extended.

John Blanchard, E. M. Blanchard with him, for appellee. -- Testimony of teller as to entries on bank-scratcher, whether made by him or not, are evidence: Henry v. Oves, 4 Watts 46. Where one knows a writing to be genuine, and his mind is so convinced that he is on that ground enabled to swear positively to the fact, it is evidence, although the writing may not be known or the memory refreshed: 1 Gr. Ev. § 437. A car record was admitted in Huckstein v. Jolly, 42 Leg. Int. 321, although not made by the witness. Besides, there was independent testimony of other witnesses as to the inspection, etc.

A servant takes the risk of defects in machinery produced by time, not brought to the master's knowledge: Baker v. Allegheny Val. R.R., 95 Pa. 215; Augerstein v. Jones, 139 Pa. 189. It is the servant's duty to report defects to the master: R.R. v. Hughes, 119 Pa. 312, 314; Patterson v. R.R., 76 Pa. 389. That the materials were in fact defective does not tend even prima facie to establish negligence: Wood, Master & Servant, § 382. The fact of breakage is as consistent with care as with negligence. It cannot, therefore, be evidence of negligence: R.R. v. Hughes, 119 Pa. 312. A railroad company is bound to use such machinery only as is reasonably safe and in common use: R.R. v. Hughes, 119 Pa. 301; Sykes v. Packer, 99 Pa. 465; Allison Mfg. Co. v. McCormick, 118 Pa. 519; Mullin v. Steamship Co., 78 Pa. 25; Titus v. R.R., 136 Pa. 618.

The trainmen are inspectors en route. If they fail in their duty, their negligence is not imputable to the company: Pa. R.R. v. Hughes, 119 Pa. 301; Baker v. R.R., 95 Pa. 211. They and car-inspectors are fellow-servants: Lehigh Valley Coal Co. v. Jones, 86 Pa. 432; Tube Works v. Bedell, 96 Pa. 175; R.R. Co. v. Bell, 112 Pa. 400; Campbell v. R.R., 17 W.N. 73.

In the absence of proof to the contrary, the presumption is that the system of inspection is sufficient, also that sufficient time had not elapsed to convey notice of the defect. Even plaintiff's evidence shows that the necessary inspection by the trainmen was made.

Even accepting plaintiff's contention, and the evidence would at best be a mere scintilla, and that is not sufficient to carry the case to the jury: Ryder v. Campbell, L.R. 40 Ex. 34; Howard Exp. Co. v. Wile, 64 Pa. 201; Cunningham v. Smith, 70 Pa. 450; R.R. v. Yerger, 73 Pa. 121; Ins. Co. v. Laury, 84 Pa. 43; Hyatt v. Johnston, 91 Pa. 196; Cover v. Manaway, 115 Pa. 338.

The cases cited by appellant, on the burden of disproving negligence, are passenger cases.

Before PAXSON, C.J., GREEN, WILLIAMS, MITCHELL and HEYDRICK, JJ.

OPINION

MR. GREEN, JUSTICE:

The plaintiff, while in the strict performance of his duty, was grievously injured without any fault of his own, and the cause of his injury was a defect in one of defendant's cars. This defect was unknown to him and he had no sufficient opportunity to discover it prior to the accident. If the principles of law applicable to the facts of the case will permit a recovery, the plaintiff is undoubtedly entitled to recover compensation for his injury. The very able counsel for the appellant with much frankness concedes that inasmuch as the plaintiff was an employee of the defendant, the mere fact of his injury raises no presumption of negligence on the part of the defendant, and further that the plaintiff must prove affirmatively the negligence of the defendant, and that, in the absence of such proof, it is the duty of the court to take the case from the jury and direct a verdict for the defendant. The contention of the learned counsel is that where there is any proof of negligence, more than a scintilla, the question becomes a question of fact for the jury, and that, in the present case, the proof being that the car numbered 9820 was in an unsafe and dangerous condition which caused the plaintiff's injury, a prima facie case of negligence was made out which required the trial court to submit the question to the jury.

It is not to be doubted that the plaintiff's injury was caused by a projecting iron rod, which extended several inches beyond its proper position at the end of the car, and it must be conceded that the plaintiff had no knowledge of its presence and no opportunity to discover it. He was a brakeman and it was his duty to couple the car in question to another car, and it was dark when he undertook to perform this duty. There is no evidence that he knew of the condition of the car or that he was in the least degree derelict or careless in the performance of his duty.

If the defendant had previous knowledge of the condition of the car or ought to have had such knowledge, and failed to repair the defect within a reasonable time, it would be guilty of negligence and the plaintiff would be entitled to recover. It is not claimed by the appellant that there is any evidence in the case showing that the defendant had actual knowledge of the defect at any time prior to the accident, but the...