Philadelphia & Reading Railroad Co. v. Yerger

• Decision Date: 17 May 1873
• Citation: 73 Pa. 121
• Parties: The Philadelphia and Reading Railroad Co. <I>versus</I> Yerger <I>et al.</I>
• Court: Pennsylvania Supreme Court

73 Pa. 121

The Philadelphia and Reading Railroad Co. versus Yerger et al.

Supreme Court of Pennsylvania.

January 22, 1873.

May 17, 1873.

January 22d 1873.

Before READ, C. J., AGNEW, WILLIAMS and MERCUR, JJ. SHARSWOOD, J., at Nisi Prius

Error to the Court of Common Pleas of Montgomery county: No. 335, of January Term 1872.

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J. Boyd, for plaintiffs in error.—The burden of proof of negli- was on the plaintiffs: McCully v. Clarke, 4 Wright 399. There was no evidence of negligence and the jury should have been so instructed: Howard Express Co. v. Wile, 14 P. F. Smith 201.

B. M. Boyer and D. H. Mulvany, for defendants in error.

The opinion of the court was delivered, May 17th 1873, by MERCUR, J.

When the plaintiffs below rested their case the defendants moved for a nonsuit. This was refused by the court; that refusal is now assigned for error.

If the defendant had declined to give any testimony we would consider the sufficiency of the evidence then given. As, however, much evidence was afterwards introduced, the whole should be considered together.

The action was brought by the defendants in error to recover damages for the burning of a block of buildings. The fire was alleged to have been caused by sparks from the stack of the railway company's locomotive "Lancaster." The buildings were situated within a few feet of the railroad embankment, and near the water-stand, where the locomotive was supplied with water.

The evidence as to whether the sparks caused the fire, was properly submitted to the jury, who found they did.

The defendants requested the court to charge the jury, that there was no testimony which would justify them in finding the defendant guilty of any negligence. This the court refused to do, but left it to them to determine from the whole testimony, whether the defendant, by his exclusive negligence, caused the fire.

For this refusal and charge the principal errors are assigned.

Negligence is the gist of this action. To recover, the plaintiff must have established the defendant's exclusive negligence.

Was there such evidence of this fact, that it should have been submitted to the jury?

It was formerly held, that where there was a scintilla of evidence of a material fact, the question should be submitted to the jury.

This doctrine, however, has been overruled, both in England and by this court.

In Wheelan v. Hardisty, 8 El. & Bl. 262, it is said, that an end has been put to what has been treated as the rule, that a case must go to the jury, if there was what has been termed a scintilla of evidence. The question is, whether the proof is such, that the jury could reasonably come to the conclusion that the issue was proved.

Toomey v. Railway Co., 3 C. B. N. S. 146, was a case for negligence. It was there held, that it was not enough to say there was some evidence. A scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendant, clearly would not justify the judge in leaving the case to the jury. There must be evidence upon which they might reasonably and properly conclude that there was negligence.

In Ryder v. Wombwell, 4 Law Rep. Ex. 32, it was said by Willes, J., that it is now settled that the question for the judge is not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established. If there is not, the judge ought to withdraw the question from the jury, and direct a nonsuit, if the onus is on the plaintiff, or direct a verdict for the plaintiff if the onus is on the defendant.

The case of Ryder v. Wombwell is cited with approbation by the court, in Howard Express Co. v. Wile, 14 P. F. Smith 201. There the rule is more distinctly and clearly stated by Justice Sharswood, to be, that where there is any evidence which alone would justify an inference of the disputed fact, it must go to the jury, no matter how strong or persuasive may be the countervailing proof; but in a case in which a court ought to say that there is no evidence sufficient to authorize the inference, then the verdict would be without evidence, not contrary to the weight of it. Whenever this is so, they have the right, and it is their duty, to withhold it from the jury.

The uncontradicted evidence in this case, showed that the spark-arrester was...