Devlin v. Beacon Light Co.

192 Pa. 188 | Pa. | 1899

Opinion by

Mr. Chief Justice Stebrett,

In 1897, two actions of trespass were brought against the defendant company, one by Sarah K. Devlin, by her father and next friend, to recover damages for injuries she sustained by being brought in contact with a live electric light wire which was negligently left upon the sidewalk in the city of Chester by defendant company’s employees while they were engaged in readjusting the wires used for public street lighting, and the other, by her parents, James K. and Sarah Devlin, to recover damages sustained by them in consequence of their said daughter’s injury. Before trial, these cases were consolidated by order of court under the provisions of the act of May 12, 1897.

On the trial, the joint plaintiffs were nonsuited by the learned trial judge for the reason given by him in the concluding sentence of his charge, viz: “ the plaintiff either saw the dangerous wire and tread upon it, or was negligent in failing to see it, and in either case having contributed to the accident, we must direct the entry of a compulsory nonsuit.” Doubtless, for the same reason, because there is no possible ground for any other, he afterwards denied the motion to take off the nonsuit. Hence this appeal by the plaintiffs. The specifications of error, so far as relevant, are directed to the court’s action in refusing to take off the judgment of nonsuit.

It was not denied, nor could it be with any reasonable hope of success, that the evidence tended strongly to prove that the defendant company was grossly negligent in leaving the wire in a position where it was liable to come in contact with other wires heavily charged with electricity, and thus endanger the lives of unsuspecting pedestrians and others passing and repassing along and across the public street. One of the two reasons assigned in support of the motion for a nonsuit was, “Because plaintiffs failed to prove negligence upon the part of the defendant.” This was wholly unwarranted by the testimony, and the learned trial judge rightly disposed of it by saying : “The evidence showed that the defendant in making some alterations in its line allowed an arc wire to lie upon the pavement in a much traveled part of the city, without guard or warning to passersby; that the plaintiff stepped upon it, and immediately received a shock that felled her to the ground and occasioned the injuries of which she complains. This, in our judgment, was sufficient to establish the negligence of the defendant in the first instance and require it to make answer.”

As to tbe alleged contributory negligence of the injured plaintiff, it is sufficient tó say that a careful consideration of the testimony has satisfied us that the learned court below erred in denying the motion to take off the judgment of nonsuit. While there is some evidence bearing on the subject of contributory negligence that may be regarded as sufficient to go to the jury, it is not of such a character as to justify a trial judge in holding, as matter of law, that because of the plaintiff’s contributory negligence there can be no recovery. In order to reach that conclusion resort must be had to inferences of fact such as can be legally drawn only by a jury. We are of opinion that the legal conclusion of contributory negligence is unwarranted by any of the admitted or conclusively established facts in this case. In other words, upon the evidence before us the case should be properly submitted to and disposed of by a jury, and not by the court alone.

Inasmuch as the case goes back for trial by a jury,.further comment.on the questions involved is neither necessary nor desirable.

Judgment reversed, motion to take off nonsuit granted, and record remitted with a procedendo.