29 Pa. Super. 231 | Pa. Super. Ct. | 1905
Opinion by
There is no material fact in dispute in this case and the validity of the verdict depends upon the accuracy of the answer given by the learned trial judge in the court below to the appellant’s first point(lst assignment of error), to wit: “ Under all the evidence, the plaintiff is not entitled to recover and the verdict of the jury must be in favor of the defendant,” which was refused. The plaintiff was a policeman of the city of Pittsburg and while transferring a prisoner in his custody from a patrol box to the station house he was injured by the fall of a fence upon him.
The defendant company is the owner of a tract of land abutting on Carson street, which is a busy thoroughfare of the city; on the north side of it are houses and stores and on the opposite side the defendant company's land is used for tracks and yard purposes, and is some feet above the level of Carson street. At the property line the company maintained on its own land a retaining wall, about 250 feet in length, and having on its top a board fence about three or four feet in height; the
On August 24, 1902, the plaintiff with another policeman made an arrest and took the prisoner to the - patrol box in order to send a call to the police station for a wagon; a crowd of persons promptly gathered on the street and pavement, and 'some persons, the number varying according to the testimony from thirty to 100, entered upon the defendant company’s land and inside of the fence, against which they leaned and looked over to view the policemen and their prisoner. The plaintiff’s fellow officer testified: “ Officer Bannon ordered the people to move away from around the patrol box and to get off the fence too, in case it would come over. I told them that that fence might come down. It wasn’t safe. Just as soon as we got there with the prisoner, about ten minutes before the wagon came; my attention had been directed to it, and I said it wasn’t safe; for them to get off the fence. Officer Bannon heard me, and joined in what I said. lie told them to get off the fence, it wasn’t safe. They wouldn’t obey and the crowd on the fence kept getting bigger.” ■ The plaintiff stated: “I was standing on the sidewalk and had hold of a prisoner. I was alongside of the wall, and the crowd gathered in close to the box, and I went out to shove the children away from the box, the wagon was coming pretty close then, to make room so we could put him in the wagon. While I was out doing this the fence came down on me ; it struck me on the head and pinned my face down on the sidewalk, doubled me up like a knife.”
The fence had been built of heavy oak sills, with post and board uprights, about nine years prior to this accident, and had been inspected, repaired and painted at irregular intervals, but at the time of the accident some parts indicated a badly decayed condition. It was not unusual for persons, employees of the company and others, to lean on the fence so as to view the matters of public interest in the street below, and on occasions similar to this arrest, persons would climb up to the fence so as to the better see the officers and their prisoners at the patrol box. There is no evidence tending to show that such a use of the defendant’s property was by its consent or permission, nor that the fence as it then stood was, independ
The general rule is that a man ts answerable for the consequences of a fault which are natJral and probable, and might therefore be foreseen by ordinary forecast, but an individual is not presumed to contemplara the coincidence of events having no probable or natural [connection in the mind, and which cannot by ordinary thoughtfulness be foreseen as likely to happen in consequence of the act in which he is engaged: Knight v. Abert, 6 Pa. 472; McGrew v. Stone, 53 Pa. 436 ; Fairbanks v. Kerr, 70 Pa. 86. The principle is aptly illustrated by Judge Shabswood, in Gillis v. Pennsylvania Railroad Co., 59 Pa. 129, as follows: “ I am bound to have the approach to my house sufficient for all visitors on business or otherwise ; but if a crowd gathers on it to witness a passing parade and it breaks down, though it may be shown not to have been sufficient even for its ordinary use, I am not liable to one of the crowd. I owe no duty to him. If a traveler by foot, on the open track of a railroad, crosses a bridge, which ought to be, but is not in its ordinary use, strong enough to bear a locomotive and a train of cars, and a rotten board breaks down under him, the company are not liable to him, for they owe him no duty.” It is a fundamental principle applicable alike to breaches of contracts and to torts, that in order to found a right of action there must be a wrongful act done, and a loss resulting from that wrongful act; the wrongful act must be the act of the defendant, and the injury suffered by the plaintiff must be the natural and not merely a remote consequence of the defendant’s act. The wrong done
The foundation of this action is negligence and the accusation of negligence is only made out by showing a breach of a legal duty by the defendant owing to the plaintiff. Negligence
In Yoders v. Amwell Township, 172 Pa. 447, it is said by Dean, J., “ Speculating on the doctrine of proximate and remote cause in supposed or hypothetical cases seems to have been a sort of intellectual recreation with text writers since the Squib case in 2 Wm. Black. 892; but approximate certainty in the administration of justice, in evidence in an issue, is all we can hope to attain to; was the consequence such as under the circumstances might and ought to have been foreseen and provided against ? The proximate cause is the dominant controlling one, and not those which are mere incidents. Or as stated in Phila. & Reading R. R. Co. v. Hummell, 44 Pa. 375, “ Precaution is a dutjr only so far as there is reason for apprehension. No one can complain of want of care in another
Where there is no conflict of testimony; and either the standard of individual duty has been judicially determined; or the rights of owners of property have been judicially defined, the decision of the question of negligence affecting the plaintiff’s right to recover and the liability of the defendant, becomes the duty of the court: Gramlich v. Wurst, 86 Pa. 74; Horstick v. Dunkle, 145 Pa. 220; Gray v. Penna. Railroad Co., 172 Pa. 383. Where the effect of the evidence is merely to establish that there are two independent causes, either one of which may have been the proximate cause of the injury, the burden is upon the plaintiff to show that the cause for which the defendant is responsible was-the one which produced the injury sought to be recovered for: Boehm v. Bethlehem Boro., 4 Pa. Superior Ct. 385. In every jury trial there is a preliminary question for the court. The court must decide whether or not there is sufficient evidence upon which the jury could base a verdict for the plaintiff. If there is no evidence, or if it is such that, in a fair legal construction, it does not sustain the plaintiff’s case, and that no fair inference to be drawn from it sustains it, the court should give the peremptory instruction to find for the defendant. It is not the province of the court to weigh the evidence or decide between conflicting statements
The first assignment of error is sustained and the judgment is reversed.