56 Pa. Super. 365 | Pa. Super. Ct. | 1914
Opinion by
Catherine Fitzsimmons, one of the plaintiffs, and wife of the other, while on a public street with the intention of taking passage on one of the appellant’s street cars, on January 4, 1909, was suddenly struck on the head by an overhead electric trolley feed wire, which broke at its right-angled intersection with another street car line. The happening of the accident and the serious character of her injuries were not in dispute. The sole request for instruction by the appellant was that “under all the evidence in the case, the verdict should,be for the defendant,” which was refused by the court and a verdict was returned in the plaintiff’s favor, and this, the court refused to set aside and enter a judgment non obstante veredicto for the defendant.
The allegation of negligence in the plaintiff’s statement of claim was that the defendant had “failed to use diligence, skill and care, and keep in repair, good order and condition the said overhead electric wires.” On the trial, the plaintiffs did not rely on the mere happening of the accident, but adduced substantive proof to determine the defendant’s negligence. The principal wit
He gave as the causes of deterioration of the overhead trolley wires, extreme cold weather, wear or crystalization, high winds, very low or zero temperature; and when asked to ascribe a cause of a trolley wire suddenly falling, after three preceding days of favorable weather when the temperature ranged from forty to fifty-four degrees and without any snow or ice or sleet falling, replied, “I should say, it must have been due to lack of proper repairs, lack of maintenance of worn parts, poor construction at the start or the burning of the wire by use of trolley wheels that did not make proper contact. The burned wire gets thinner as it is burnt off and finally
After a careful examination of this record, we cannot say as a matter of law that the testimony of the witness Smethhurst, supported as he was in some degree by Prof. Herring, was not sufficient to support the verdict. He was an expert of large practical experience, and if believed by the jury his testimony reasonably showed the cause of the accident to be a careless supervision of this worn trolley wire.
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. If this accident was capable of an explanation which repelled an inference that it resulted from the defendant’s negligence, they could and ought to have made it, because they were in a position to do so, while from the nature of the case it was not in the power of the plaintiff to show expressly in what manner the work was performed: Shafer v. Lacock & Co., 168 Pa. 497. It is still the rule of law, that the happening of the accident, in cases such as this one, is not evidence of itself of negligence, but the quantum of proof necessary to establish negligence under certain circumstances need be very light. When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care: Geiser v. Railways Co., 223 Pa. 170. While the burden of proof is on the plaintiff in such cases, it is not required that the fact be established by direct or positive proof; like any other fact, it may be established by circumstantial evidence, and on
In a case where human life was at stake, Judge Gibson said in Com. v. Harman, 4 Pa. 269, “Circumstantial evidence is, in the abstract, nearly, though perhaps not altogether, as strong as positive evidence; in the concrete, it may be infinitely stronger. Indeed I scarcely know whether there is such a thing as evidence purely positive. . . . The only difference between positive and circumstantiál evidence is, that the former is more immediate, and has fewer links in the chain of connection between the premises and conclusion, but there may be perjury in both. No human testimony is superior to doubt,” and this standard has never been departed from in either criminal or civil cases. The same thought is reiterated by Judge Brown in Lanning v. Railways Co., 229 Pa. 575, “The appellees were not required to establish the negligence of the defendant by direct or positive proof. Like any other fact, negligence may be, and often is, established by circumstantial evidence; but when such proof is relied upon, it must fairly and reasonably lead to the conclusion that the specific act of negligence existed, as charged, and was the proximate cause of the injury sustained. See also Zercher v. Transit Co., 50 Pa. Superior Ct. 324; Matthews v. Railroad Co., 18 Pa. Superior Ct. 10. The defendant presented a persuasive case, on this argument, but the facts were carefully submitted to the jury, and there was sufficient evidence and inferences to be drawn from the established facts to justify the jury in finding that the broken wire of the defendant company had not been inspected and repaired with reasonable care, to the date of the accident.
We cannot say as a matter of law that the testimony of the experts was so unreasonable as to be ignored or
The judgment is affirmed.