Campbell v. Frankford Etc. Ry. Co.

139 Pa. 522 | Pa. | 1891

OpintoN,

Me.. Justice Williams :

The charge of the learned judge of the court below correctly stated the legal principles by which the liability of the defendant company should be determined, and, if there was evidence, on which the verdict may fairly rest, the judgment ought not to be disturbed. The last point submitted by defendant’s, counsel asked the court to instruct the jury that there was not such evidence, and that their verdict ought to be for the defendant. The refusal of this point raises the only question that it is important now to consider.'

There was very little conflict in the evidence, and the facts were not in controversy. The plaintiff was passing up Front street, in the city of Philadelphia, on the 20th of April, 1889, at a little after 8 o’clock in the evening. As she came to the intersection of Front and Dauphin streets, she left the foot-walk, and started to cross diagonally over the intersection to the other side of Front street. When nearly over, she stepped into a depression in the pavement about five inches in depth, across which one track of defendant’s road passed. Her foot caught in an opening under the rail in this depression, and she fell and received the injuries for which she is now seeking to recover. Under the ordinances of the city, it was the duty of the defendant to keep the pavement along its road in good repair, and the theory on which the plaintiff sought to hold the defendant for the injury she had received, was that this duty had been neglected, and the depression in the pavement and the opening under the rail were due to the want of care of the-company over the pavements at this point.

The plaintiff gave a circumstantial account of the manner in which she was hurt. She stated that she fell because she “ went into that hole ” in the pavement, and her feet went under the track of the defendant’s road so that she was “tripped up ” and fell forward. Several witnesses testified to the existence and depth of the depression, and to the fact that there was an open space between the bottom of the depression and the bottom of the rail. This made the plaintiff’s case. The defendant did not deny any of the facts shown, bat proved clearly that the depression in the pavement and the opening under the rail were made under the direction of the city, to serve as a surface drain or outlet for water coming down the street, and to conduct it into the sewer. The depression and the opening were thus shown to be due, not to the negligence of the company, but to the system of surface drainage maintained by the city. This was a complete answer to the plaintiff’s case, and the learned judge so regarded it, for he said to the jury: “I am compelled to say, in this case, there is no evidence to show that the defendants constructed this drain, or toot control over it ... . If, therefore, the injury to the plaintiff was caused by the drain alone, the plaintiff cannot recover.” This was clearly right, but he went on to say further : “ It was the duty of the defendants to keep it (the drain) in good repair, and if, in consequence of its being out of repair, the plaintiff was injured, the defendants were negligent.” He then submitted the question to the jury, whether or not the defendant company had kept the drain in repair.

We have looked through the evidence, but we have been unable to find a particle of testimony to justify the submission of this question. The evidence showed that the drain was kept in the condition the city required, and because it was in that condition, with the opening under the rail for the water to escape, the accident had happened. On the motion for a new trial, the attention of the learned judge was again called to this subject, and, in his opinion dismissing the motion, he collects the circumstances which he considers sufficient to justify the submission, and states them thus: “ There was evidence that the stringer under the rail had rotted away, and evidence of the condition of the drain itself, such as its length, breadth, and depth, and of the loose cobble stones in it, and its subsequent repair by the defendants, which reduced its size in every respect, and also of several accidents like the plaintiff’s.” But the evidence showed, and the learned judge so instructed the jury, that the opening under the rail, the depression in the pavement, its length, breadth, and depth, were fixed and directed by the city, and maintained in the condition required by the city. The repairs by which it was reduced in size were rendered necessary by its being torn up for the purpose of setting a lamp-post which encroached upon the space which the drain had previously occupied. This also was done by the city, or under its direction. The fact that other accidents had happened at this drain, tended to show that the city maintained a dangerous system of surface drainage, but threw no light on the state of repair in which the drain was kept by the company. Not one of the circumstances referred to, therefore, justified the submission of the question to the jury, or gives the least support to the verdict rendered.

As there was no evidence that tended to show negligence on the part of the defendant, the plaintiff had no case, and the last point, which asked a direction to find in favor of the defendant, should have been affirmed. To submit a question to a jury, in a case like the present, when there is not evidence enough to support a verdict, is to open the door for a verdict that is prompted by sympathy, and that rests rather on the necessities of the plaintiff and the ability of the defendant than on an impartial examination of the testimony. Jurors have a right to conclude, when a question is thus left to their determination, that, in the opinion of the court, there is sufficient proof of the fact to justify them in finding it, and it is not to be wondered at that the presence of suffering and poverty should lead them to act upon such conclusion, without waiting to investigate for themselves.

The second assignment of error is sustained, and the judgment is reversed.

February 16,1891, motion for a re-argument and for a venire facias de novo refused.