Pennsylvania Railroad Co. v. McTighe

• Decision Date: 04 January 1864
• Citation: 46 Pa. 316
• Parties: The Pennsylvania Railroad Company <I>versus</I> McTighe.
• Court: Pennsylvania Supreme Court

46 Pa. 316

The Pennsylvania Railroad Company versus McTighe.

Supreme Court of Pennsylvania.

January 4, 1864.

ERROR to the Common Pleas of Allegheny county.

COPYRIGHT MATERIAL OMITTED

John Hampton, for plaintiff in error.

Marshall & Brown (with whom was J. Charles Dicken), for defendants.

The opinion of the court was delivered, January 4th 1864, by THOMPSON, J.

In Beatty v. Gilmore, 4 Harris 463, the plaintiff in error, who had been defendant below, complained of the court for charging that the onus of showing the exercise of proper diligence and care was not on the plaintiff, but that the want of it lay upon the party averring it. In regard to that, this court said, "it was perhaps of little consequence whether in this particular the court was right or wrong, since the plaintiff's fall into the area was witnessed by many persons who testified to the incidents attending it, and thus enabled the jury to ascertain whether the accident was fairly ascribable to his inexcusable carelessness." Notwithstanding this, the court however affirmed the ruling of the court below under the circumstances of that case.

What was said there is very applicable to the case before us. The accident occurred in the day-time, and was seen by witnesses who described all the particulars of it. From these facts a jury would be able to say whether or not the plaintiff was guilty of inexcusable negligence. Nor was this all; the defendant gave all the evidence he could of negligence on the part of the plaintiff, and thus the question was fully raised, and put to the jury under instructions by the court, that if there was negligence on part of the plaintiff which contributed to the disaster, he could not recover. We need not trouble ourselves, therefore, with the question upon whom the onus rested of disproving or proving negligence. I have no doubt there may be cases in which the plaintiff's case would be incomplete without proof of care: such for instance, as where a prescribed mode of doing an act was required out of which the injury sprung; or where a party should leap from a train of cars to avoid a collision, on well-grounded apprehension of it; in such, and in many other cases which might be imagined, it would doubtless be necessary to cover the whole ground in chief, necessary to entitle the plaintiff, primâ facie, to recover. But if a party omit this, where it is not necessary to aver it in the narr., and the other side do not choose to demur, or go to the jury on the want of such an element, but assume the burthen of proof, he could not nonsuit the plaintiff for want of it, or ask a court to do more than to submit the question to the jury whether, from all the evidence, the plaintiff himself had been guilty of negligence or not. All this occurred, and was so dispensed in the court below.

The assignments of error are three in number, and are rather as to what was omitted to be said by the learned judge in answer to...