Phila. City Pass. Railway Co. v. Henrice

• Citation: 92 Pa. 431
• Parties: Philadelphia City Passenger Railway Company <I>versus</I> Henrice.
• Decision Date: 01 March 1880
• Court: United States State Supreme Court of Pennsylvania

92 Pa. 431

Philadelphia City Passenger Railway Company versus Henrice.

Supreme Court of Pennsylvania.

January 12, 1880.

March 1, 1880.

January 12th 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON and TRUNKEY, JJ. STERRETT and GREEN, JJ., absent

Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1879, No. 139 D. W. Sellers, for plaintiff in error.—Instead of proof of negligence as a fact, the court admitted evidence from which the jury were to make inferences, and from these presume facts. That is, if the jury should think the contract of employment of a driver was too long in point of time, then, without any evidence, they were at liberty to believe such time of service rendered him unable to discharge his duties properly, and thus they could impute negligence to the company. No conclusion is reliable drawn from premises which are uncertain. Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved, and not themselves presumed. The law requires an open, visible connection between the principal and evidentiary facts, and does not permit a decision to be made on remote inferences: Douglass v. Mitchell, 11 Casey 443. There is no duty in a driver to assume that a child will run right into a car, and that no parent or adult is on guard: Phila. & Reading Railroad Co. v. Heil, 5 W. N. C. 91.

M. H. Stutzbach and Benjamin H. Haines, for defendant in error.—It is not necessary, in order to sustain the court below, that the proof that such extraordinary hours of labor were required of the driver (with the consequent deprivation of usual sleep), should go to the extent of raising a legal presumption, that he would sleep or be in a sleepy condition during the day whilst engaged in his duties. Such proof was admissible as furnishing a probability that such would be the effect of such hours of labor upon the driver, and, as a fact in connection with the other circumstances, it is right to refer it to the jury: Tanner v. Hughes, 3 P. F. Smith 290

Mr. Justice PAXSON delivered the opinion of the court, March 1st 1880.

The first, second and fourth assignments relate to the same subject, and may be considered together. The first and second allege error in the admission of evidence on behalf of the plaintiff below to prove the hours of service required by the defendant company of its drivers and conductors, whilst the fourth relates to the instructions of the court upon said evidence.

The fact to be proved was, whether the driver of car No. 127 had been guilty of negligence upon the occasion in question in consequence of which the child, Charles Henrice, had been run over and injured. Was the evidence objected to of such a character as tended to prove this fact? It was undoubtedly competent to prove the condition of the driver at the time the accident occurred; that he was intoxicated, or absent, or for any other reason incompetent to attend to his duties: Pennsylvania Railroad Co. v. Books, 7 P. F. Smith 339; Mansfield Coal & Coke Co. v....