226 Pa. 586 | Pa. | 1910
Opinion by
The appellee boarded a car of the appellant on the evening of May 26, 1907. He was not able to get a seat and stood between two of the cross seats up against the guard rail on the left side of the car, holding on to an upright post with his left hand and to the seat in front of him with his right. The car
After the appellee was allowed to become a passenger of the appellant on its crowded car, and he remained standing between two of the cross seats, with no part of his body extended beyond the cross bar, he was doing all that he could as a passenger under the circumstances, and the duty of the company in transporting him was to exercise the highest degree of care for his safety. If injury had befallen him as the result of an accident due to the breaking of machinery, collision, derailment of cars or something improper or unsafe in the conduct of the business, or in the appliances of transportation, there would be a presumption of negligence on the part of the common carrier, and the burden would be upon it to show that the injury was in no way the result of its negligence: Thomas v. Phila. & Reading R. R. Co., 148 Pa. 180. Here the only negligence of the defendant complained of is the sudden jerk or lurching of the car as it was passing over a curve. Nothing happened to the car itself. It went on after the injured passenger had been removed, just as if nothing had happened. Whether the car in passing the curve was properly operated by the motorman was'for the jury, but, under the court’s instructions, complained of in the first assignment, the mere happening of the accident raised a presumption of
That the instruction complained of was error seems to be admitted by counsel for appellee, for the burden of their argument is that it must not be considered standing alone, as, from other portions of the charge, it clearly appears that the court submitted to the jury the question of defendant’s negligence. The charge, however, may be searched in vain for a single word of instruction that the burden was upon the plaintiff to establish the negligence of the defendant, and, from the quoted portion, the only inference to be drawn by the jury was that the mere happening of the accident made out a prima facie case for the plaintiff and cast the burden upon the defendant of disproving negligence. No burden was
The first assignment is sustained and the judgment reversed with a venire facias de novo.