Thomas v. Philadelphia & R. R. Co.

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: PAXSON, C. J.
• Citation: 23 A. 989,148 Pa.St. 180
• Parties: THOMAS v. PHILADELPHIA & R. R. CO.
• Decision Date: 28 March 1892

23 A. 989
148 Pa.St. 180

THOMAS
v.
PHILADELPHIA & R. R. CO.

Supreme Court of Pennsylvania.

March 28, 1892.

Appeal from court of common pleas, Lebanon county; John B. McPherson, Judge.

Action by Selim S. Thomas against the Philadelphia & Reading Railroad Company for personal injuries. From a judgment entered on a verdict directed for defendant, plaintiff appeals. Affirmed.

Thos. H. Capp and Geo. B. Schock, for appellant.

C. B. Killinger and J. W. Killinger, for appellee.

PAXSON, C. J. On June 5, 1890, the appellant was a passenger on the cars of the defendant company He was seated at an open window, and, in the vicinity of Pottstown, was struck on the arm by a missile with sufficient force to cause a fracture thereof. It was not shown what caused the injury. The appellant did not seethe missile, nor was it found in the car. There was no evidence that any one was near the train, on the outside, who could have inflicted the injury. This suit was brought to recover damages for the injury referred to. The theory of the appellant was that it was caused by a loose nut, thrown from one of the switches of the defendant's road-bed, over which the train was passing at the time. This was a mere theory, however, without any evidence to sustain it. The appellant contended that, under such circumstances, the question of the defendant's negligence should have been submitted to the jury. The court took a contrary view of the case, and directed a verdict for the defendant. This is the error assigned. The learned counsel for the appellant relied upon Railroad Co. v. MacKinney, 124 Pa. St. 462, 17 Atl. Rep. 14. That case differs widely from this in its facts. There, the plaintiff received a violent blow on his left eye, causing the injury of which he complained. The nature of the injury indicated that he had been struck by some hard substance, hurled with considerable force. A surgical examination of the eye, made on his arrival in Philadelphia, showed that it was probably a piece of coal. Small particles of some hard substance resembling coal were found and removed from the injured organ. It also appeared that, at the time he was struck, he saw through the open window at which he was sitting one of the company's trains, passing in the opposite direction, immediately on the left of the train on which he was being carried; that simultaneously with receiving the blow the engine of that train was directly opposite the window, and was thus interposed between...