Patterson Coal & Supply Co. v. Pittsburg Railways Co.

• Decision Date: 12 October 1908
• Docket Number: 192-1908
• Citation: 37 Pa.Super. 212
• Parties: Patterson Coal & Supply Company, Appellant, v. Pittsburg Railways Company
• Court: Pennsylvania Superior Court

37 Pa.Super. 212

Patterson Coal & Supply Company, Appellant, v. Pittsburg Railways Company

No. 192-1908

Superior Court of Pennsylvania

October 12, 1908

Argued April 17, 1908

Appeal by plaintiff, from judgment of C.P. No. 1, Allegheny Co.-1903, No. 693, on verdict for defendant in case of Patterson Coal & Supply Company v. Pittsburg Railways Company.

Trespass to recover damages for the death of two horses. Before Swearingen, P. J., specially presiding.

The facts appear by the opinion of the Superior Court.

The court gave binding instructions for defendant. Plaintiff appealed.

Error assigned was in giving binding instructions for defendant.

A. C Johnston, for appellant, cited: Uggla v. West End St. Ry Co., 160 Mass. 351 (35 N.E. 1126); Giraudi v Electric Imp. Co., 107 Cal. 120 (40 P. 108); Volkmar v. Ry. Co., 134 N.Y. 418 (31 N.E. 870); Haynes v Raleigh Gas Co., 114 N.C. 203 (19 S.E. 344); Alexander v. Nanticoke Light Co., 209 Pa. 571; Crowe v. Nanticoke Light Co., 209 Pa. 580; East End Oil Co. v. Torpedo Oil Co., 190 Pa. 350; Fitzgerald v. Electric Illuminating Co., 200 Pa. 540.

Don Rose, with him Clarence Burleigh, James C. Gray and Wm. A. Challener, for appellee, cited: Kepner v. Harrisburg Traction Co., 183 Pa. 24; Uggla v. Ry. Co., 160 Mass. 351 (35 N.E. 1126); Smith v. East End Electric Light Co., 198 Pa. 19; Aument v. Tel. Co., 28 Pa.Super. 610; Giraudi v. Electric Imp. Co., 107 Cal. 120 (40 P. 108); Volkmar v. Ry. Co., 134 N.Y. 418 (31 N.E. 870); Haynes v. Raleigh Gas Co., 114 N.C. 203 (19 S.E. 344); Alexander v. Nanticoke Light Co., 209 Pa. 571; East End Oil Co. v. Torpedo Co., 190 Pa. 350; Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540.

Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.

OPINION

PORTER, J.

The plaintiff brought this action to recover the value of two horses which had been killed, while being driven along a public highway, by the falling of a trolley wire. The statement averred that " the injuries complained of were wholly due to the carelessness and negligence of said defendant in the construction of said wire and their failure to keep the same in a sound and safe condition and proper state of repair." At the trial the plaintiff produced evidence that the horses were being driven by their servant along a public highway, leading from the City of Pittsburgh to the Borough of Esplen, that there was a double track street railway along the highway and, the road being narrow, the horses drawing a heavy wagon were being driven along one of the railway tracks, and that the trolley wire suddenly broke and fell upon the horses, the electric current killing both of the horses within two minutes. This was the only evidence as to the circumstances of the accident or the cause which produced it. There was no evidence offered tending to show negligence in the construction, inspection or repair of the trolley wire or its attachments, and if negligence could be imputed to any person under the evidence it had to be inferred from the mere fact that the trolley wire fell. The court below gave binding instructions in favor of the defendant, and plaintiff appeals.

The plaintiff failed to produce evidence that the street railway upon which its horses were being driven or the trolley wire which fell upon the horses, was the property of, had been constructed or was being operated by this defendant company, and the ruling of the court below could be sustained on that ground. Assuming, however, that the defendant company was the owner and operator of the street car line in question and responsible for the duty of keeping the various appliances in repair, the evidence was still not sufficient to warrant the court below in permitting a jury to draw an inference of neglect upon the part of the defendant company. The trolley wire is an essential appliance in the operation of a street railway. The question raised by this specification of error is, ought a jury to be permitted to infer negligence upon the part of a street railway company from evidence which merely establishes that the trolley wire broke, without more? The general rule undoubtedly is that negligence must be affirmatively proved, and is not, in the absence of a contract relation between the parties, to be inferred from the mere happening of an accident. The present chief justice said, in Oil Company v. Torpedo Company, 190 Pa. 350, 42 A. 707, " The maxim res ipsa loquitur is in itself the expression of an exception to the general rule that negligence is not to be inferred but to be proved affirmatively. The ordinary application of the maxim is limited to cases of an absolute duty, or an obligation practically amounting to that of an insurer. Cases not coming under one or both of these heads must be those in which the circumstances are free from dispute and show, not only that they were under the exclusive control of the...