Pennsylvania Canal Co. v. Bentley

• Decision Date: 07 July 1870
• Citation: 66 Pa. 30
• Parties: The Pennsylvania Canal Co. <I>versus</I> Bentley.
• Court: Pennsylvania Supreme Court

66 Pa. 30

The Pennsylvania Canal Co. versus Bentley.

Supreme Court of Pennsylvania.

May 18, 1870.

July 7, 1870.

May 18th 1870.

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

Error to the Court of Common Pleas of Juniata county: No. 48, to May Term 1870.

COPYRIGHT MATERIAL OMITTED

E. D. Parker, for plaintiffs in error.—A plaintiff claiming damages for negligence must make out a case resulting exclusively from the defendant's negligence: Waters v. Wing, 9 P. F. Smith 212; Catawissa Railroad Company v. Armstrong, 13 Wright 186; Railroad v. Norton, 12 Harris 465; Heil v. Glanding, 6 Wright 493. The judge should have charged that blindness in the mule contributed to the loss unless ordinary care under the circumstances had been exercised: Pennsylvania Railroad v. Zebe, 9 Casey 318; Railroad Company v. Heileman, 13 Wright 60; Morrison v. Davis & Co., 8 Harris 177; Huyett v. Philadelphia & Reading Railroad, 11 Id. 374; Philadelphia & Reading Railroad v. Spearen, 11 Wright 305. The case should have not been submitted to the jury. There was no dispute as to the facts under which the accident occurred: Pennsylvania Railroad Company v. Barnett, 9 P. F. Smith 264; McCully v. Clark, 4 Wright 406; Pennsylvania Railroad Company v. Henderson, 7 Wright 449; Railroad Company v. Aspell, 11 Harris 147.

E. S. Doty, for defendant in error, cited Beatty v. Gilmore, 4 Harris 463; Erie v. Schwingle, 10 Harris 384; Pittsburg v. Grier, 10 Id. 54; Waters v. Wing, supra.

The opinion of the court was delivered, July 7th 1870, by SHARSWOOD, J.

This controversy is about a mule. Some great principles are supposed to be involved which it is necessary that the court of the last resort should settle. We often hear this alleged in cases in which it must be evident that the expenses will exceed the amount in dispute, or at least one would think the play not to be worth the candle. This ardent attachment to principle seems to be a marked characteristic of the people and bar of this state, and would be highly laudable if it were not accompanied with some counterbalancing public evils; such as the great increase of the business of this court and the harassing of suitors. There were no less than thirteen points presented in writing to the court below, and the learned judge was required to navigate through all the shoals and narrows of negligence and evidence of negligence; of contributory negligence and the onus probandi. He did so, however, with remarkable prudence and skill; and the printed argument of the plaintiffs in error has failed to convince us that he was guilty of a single error.

The first error assigned is in the answer to the defendants' second point, that it was incumbent on the plaintiff to show affirmatively that no negligence on the part of his employees contributed to the injury. This the court denied to be law. The plaintiff relies on Waters v. Wing, 9 P. F. Smith 213; but that case is against him. The court there expressly say that if the plaintiff makes out a primâ facie case, the burden is on the defendants to disprove care and thus establish negligence on the part of the plaintiff. It is undoubtedly true that when the plaintiff's own evidence discloses contributory negligence he cannot recover. But this is not peculiar to this class of cases, but extends to all. For if in an action on a book account the plaintiff's own evidence shows that it had been paid, he must fail. But that does not establish that the onus of proving affirmatively that it has not been paid is on him.

The second error assigned is in the answer to the defendants' third point, that the fact that the plaintiff had a blind mule in his team made it incumbent on him to use more than ordinary care. The judge very correctly answered to this that if he failed to use such care as was prudent and necessary, considering that he had a blind mule in his team, then he cannot recover, if the blindness of the mule contributed to the accident and loss sustained. Surely if...