Kepner v. Harrisburg Traction Co.

Negligence — Street railway — .Evidence—Presumption of negligence. In an action against a street railway company to recover damages for personal injuries, no presumption of negligence arises against the street railway company from the mere fact that plaintiff’s horse became frightened by the breaking of a trolley wire, and that in consequence plaintiff was injured by being thrown or jumping from his wagon, when neither the wire nor any sparks emitted from it touched the horse, wagon or the plaintiff. On the contrary the burden is on the plaintiff to establish negligence on the part of defendant by affirmative proof.

Appeal, No. 6, Jan. Term, 1897, by plaintiff, from order of C. P. Dauphin County, March T., 1896, No. 438, refusing to take off nonsuit. Trespass for personal injuries. Before McPherson, J. The facts appear by the opinion of the Supreme Court. At the trial the court entered a compulsory nonsuit, which it subsequently refused to take off in an opinion in part as follows : The motion to take off the nonsuit raises a question that should be settled definitely. The plaintiff concedes that no other evidence of defendant’s negligence is to be found than the unexplained breaking of a wire; but the argument is vigorously made that nothing more is needed to carry the case to a jury. Two or three decisions in other jurisdictions support this view, but to adopt it in Pennsylvania would be so marked a departure from the course of decision in our own state, that a trial judge cannot be expected to take the step. As a question of policy, it may be wise to put into one class all companies using electricity upon or over the streets of a city and subject them to a presumption of negligence whenever an injury is done by any appliance under their control. But whether it be wise or not, it is clear that the proposed change of rule should be ordained by the legislature or announced by the Supreme Court; for by the present rule, in the case of injury to persons on the street, the courts of common pleas are bound to deal with these companies as with other defendants charged with negligence, and to require affirmative evidence that they have failed in duty, other than the bare fact that an appliance of the business has caused the injury complained of. Considering the proposed rule in reference to street railway companies alone, it is obvious that one result would be to make such companies insure the safety of persons on the street against injury by any appliance of transportation. As in the present case, the plaintiff in a suit for such an injury would prove the bare fact that he had been hurt; thereupon the presumption of the defendant’s negligence would arise, and evidence in explanation would probably be offered; and then, upon the question whether the explanation was sufficient — the element of contributory negligence being laid aside — the controversy would go to the jury, with a verdict for the plaintiff as the highly probable result. A report of such a trial may be found in Uggla v. Railway Co., 160 Mass. 351. In that case the plaintiff while driving on Park Square, in Boston, “ was struck by a broken iron attached to a wire guy. The iron was part of an ear, used to clasp a trolley wire and apply to it a strain from the guy, in order to keep the trolley wire in place around a curve and over the defendant’s track. The ear broke with the strain and one part of it fell, striking the plaintiff on his head. As to these facts there was no dispute at the trial, and there was no other evidence that the defendant was in fault.” Thereupon the defendant offered its explanation, and introduced evidence, “ that it was not guilty of negligence, tending to show that the break was a clean break, bright in color and appearance, and that the iron was sound all through; without flaw or defect in it; and also that the whole apparatus was manufactured and put up by a manufacturer of the highest reputation; that the ear and guy constituted the best and strongest device known at the time for keeping trolley wires in place; that the defendant employed a corps of competent superintendents, foremen and inspectors, who inspected the whole line weekly, including the ears and their attachments; and that this particular part of the line had been inspected within a week prior to the accident.” It is not likely that in any case more could be proved than is here set out; but the ease was carried to the jury by the presumption of the defendant’s negligence, and in spite of an explanation apparently complete there was a verdict in favor of the plaintiff. Volkmar v. Elevated Railway Co., 134 N. Y. 418 is a somewhat similar decision. It may fairly be cited in support of the plaintiff’s contention, although there was some slight evidence in that case of the defendant’s negligence, in addition to the fact that a bolt had fallen from its structure and had struck the plaintiff upon the shoulder. Haynes v. Gas Co., 114 N. C. 203, contains some general language which is in the line of the argument now being considered; but in that case the plaintiff proved the defendant’s negligence in putting up a guy wire that crossed and was in contact with the feed wire of a railway company ; and the language of the opinion should be read in the light of the facts in proof. It may be, however, that the court intended to lay down a general rule in reference to companies using electricity upon a public street; and in that event, the case supports the plaintiff’s argument. In Giraudi v. Electric Improvement Co., 107 Cal. 120, there was evidence of negligent construction; and in Nichols v. City, 35 Minn. 430, a telephone company had notice that its wires were obstructing travel, and failed to remove them after a reasonable time. But, whatever maybe the rule in other jurisdictions, the rule in Pennsylvania is, that in cases like the present the plaintiff must offer affirmative evidence that the defendant has been negligent. It would be a waste of time to cite more than two or three of the numerous cases enforcing this rule with regard to steam railways, whose right of passage conflicts with the similar right of a traveller on foot or by wagon at the crossing of a public road: Railway Co. v. Frantz, 127 Pa. 297; Ellis v. Railway Co., 188 Pa. 506; Childs v. Road Co., 150 Pa. 73. In principle, however, the doctrine now contended for is as applicable to such companies as to street railways. The only difference is one of degree, the street railway being more dangerous; but unless as a matter of policy this difference requires a difference in rule, it ought to be enough for the person injured at a crossing by a steam railroad, to prove the bare fact that he has been struck upon the crossing by the defendant’s train. The presumption of negligence should arise at once, and with the explanation offered by the defendant should carry the whole controversy to the jury. As to steam railroads, howmver, it need not he argued that this is not the law of Pennsylvania. Neither need time be spent to establish the proposition, that it is not the law in actions for negligence against individuals or private corporations. In such suits, also, there is no presumption that the defendant has been negligent; the plaintiff must prove that averment affirmatively, and is not allowed to recover unless he can show more than the mere fact of injury: Gorshorn v. Smith, 92 Pa. 435; Simpson v. Pittsburg Locomotive Works, 139 Pa. 245; Reese v. Clark, 146 Pa. 465; Pick v. Jackson, 8 Pa. Superior Ct. 878. It can also be made clear without difficulty that the rule now proposed is not the law of Pennsylvania in suits against street railway companies, the class of corporations in question: Campbell v. Railway, 139 Pa. 522; Keller v. Railway Co., 149 Pa. 65; Gilmore v. Pass. Ry. Co., 153 Pa. 38; Kestner v. Traction Co., 158 Pa. 422; Johnson v. Railway Co., 160 Pa. 647; Yingst v. Railway Co., 167 Pa. 438; Flanagan v. Railway Co., 163 Pa. 102; Thatcher v. Traction C-o., 166 Pa. 66; Harper v. Traction Co., 175 Pa. 129: Comey v. Traction Co., 175 Pa. 183; McLaughlin v. Traction Co., 175 Pa. 565; Harkins v. Traction Co., 173 Pa. 146; Conner v. Traction Co., 173 Pa, 602; Reilley v. Traction Co., 176 Pa. 835; Musser v. Railway Co., 176 Pa. 621; Reber v. Traction Co., 179 Pa. 339. If necessary these citations could be multiplied; but probably enough have been given to show clearly that the proposition now under consideration is a novelty in this state. It is not for a court of common pleas to overrule these cases and change the law of evidence. There is one decision in Pennsyl vania, however, upon which the plaintiff lays much stress : Canal Co. v. Graham, 63 Pa. 290. The facts were, that the canal company was required by its charter “ to build and keep in good repair suitable and convenient bridges; ” and that the plaintiff was injured by the breaking of a bridge. He brought suit, and was allowed to recover without other proof of the company’s negligence than the fact that the bridge broke down. In some degree, the case supports the plaintiff’s argument; but the opinion makes it clear — as does also the comment in Improvement Co. v. Rhoads, 116 Pa. 384, —that the decision was put upon the express obligation imposed upon the company by its charter. It is true that the General Railroad Acts of 1849 and 1868, and the Street Railway Act of 1889, might perhaps have been construed to imply a similar obligation by reason of the power they give to construct, maintain and operate; but it is equally true that this construction has not obtained. This grant of power has never been regarded as imposing an obligation so imperative as to involve a change in the rule of law that requires a charge of negligence to be made out by affirmative evidence. In this connection, the case of Whitaker v. Delaware & Hudson Canal Co., 87 Pa. 34, may be referred to as instructive, and perhaps as tending to confine the authority of Canal Co. v. Graham, to an identical state of facts. The plaintiff’s argument may be fairly summarized as an effort to extend the doctrine of res ipsa loquitur, so as to embrace every injury done by the companies employing electricity upon a public street. In the present state of the Pennsylvania decisions, I do not regard the question as open, and therefore, I have not discussed it. But I may point out in conclusion that if I am wrong in the view I take of our own authorities, the facts now before the court present the question distinctly: Shall negligence be presumed against a street railway company from the mere happening of an injury to a person on the highway, caused by an appliance of tbe company’s business ? There is nothing here except the single fact, that the wire broke; for anything that appears, it might have been struck by lightning, or blown down by a high wind, or broken by the fall upon it of a missile thrown by a stranger, or torn apart by some inevitable accident. Unless the presumption contended for exists, it is a mere guess to say that the break was caused by negligence. The plaintiff has chosen to rely upon the bare presumption, and if that fails there is nothing else. Plaintiff appealed. Error assigned was refusal to take off nonsuit. There are cases in which a fair presumption or inference of negligence arises from the circumstances under which the injury occurred, and this we think is one of them: Shafer v. Lacoek, Hawthorn & Co., 168 Pa. 497; Fleming v. Railway, 158 Pa. 135 ; Clow v. Pittsburgh Traction Co., 158 Pa. 410; Phila. & Reading R. R. v. Anderson, 94 Pa. 351. The following cases are directly in point and establish the position we claim: Pennsylvania & Ohio Canal Co. v. Graham, 63 Pa. 290 ; Huey v. Gahlenbeck, 121 Pa. 238 ; Scott v. Dock Co., 3 Hurlst. & Colt, 596; Dixey v. Phila. Traction Co., 180 Pa. 401; Butler v. M. R. Co., 143 N. Y. 418; Morris v. Strobel & Wilken Co., 81 Hun, 1; Briggs v. Oliver, 4 Hurlst. & Colt, 403; Giraudi v. Electric Imp. Co. of San Jose, 17 Cal. 120 ; Haynes v. Gas Co., 114 N. C. 203 ; Denver Consolidated Electric Co. v. Simpson, 5 Am. Elec. Cases, 278; Bourget v. Cambridge, 156 Mass. 391; Uggla v. West End Street Ry., 160 Mass. 351; Hutchinson v. Boston Gas Light Co., 122 Mass. 219; Nichols v. Minneapolis, 33 Minn. 432. Negligence cannot be presumed from the mere fact of injury, but must be affirmatively proved: Baker v. Fehr, 97 Pa. 72; Whitaker v. Canal Co., 87 Pa. 34; Borough v. Neff, 102 Pa. 474; Goshorn v. Smith, 92 Pa. 435; Shearman & Rediield on Negligence, sec. 12; Jones on Evidence, sec. 181; MacLean v. Burnham, 19 W. N. C. 53; Mensch v. R. R., 150 Pa. 598; Hartman v. R. R., 144 Pa. 345: Simpson v. Locomotive Works, 139 Pa. 245; McKenna v. Paper Co., 176 Pa. 306; Titus v. R. R., 136 Pa. 613; Allison Mfg. Co. v. McCormick, 118 Pa. 519; R. R. v. Yeiser, 8 Pa. 366; Jennings v. R. R., 93 Pa. 337 ; Henderson v. R. R., 144 Pa. 461; Thomas on Negligence, p. 574; Wharton on Evidence, sec. 362; Erie R. R. v. Decker, 78 Pa. 293; R. R. v. Yerger, 73 Pa. 121; Booth on Street Railways, sec. 132; Collins v. Leafly, 124 Pa. 203 ; Allegheny v. Zimmerman, 95 Pa. 287 ; Scott v. Dock Co., 3 Hurl. & C. 596; Welfare v. Ry. Co., L. R. 4 Q. B. Cases, 693.