Fleming v. Pittsburgh, Cincinnati, Chicago & St. Louis Ry.

158 Pa. 130 | Pa. | 1893

Opinion by

Mr. Justice Thompson,

The first two assignments of error are based upon the refusal of the learned trial judge to charge as follows:

“ First. The burden of proof is on the plaintiff to show that the death of her daughter was caused by the defendant, and under the circumstances of the present case the burden resting on the plaintiff is not satisfied by the mere presumption of negligence which sometimes arises against the carrying company when a passenger is killed or injured.”

“ Second. Under the circumstances of the present case the burden of proof is not shifted from the plaintiff by the mere fact that her daughter was killed while a passenger on defendant’s railroad, but the plaintiff must show such facts as will connect the defendant, or its servants, or some of the appliances of transportation, with the happening of the injury.”

Authority need scarcely be cited to establish that where an injury occurs to a passenger in. consequence of something done or not done, connected with the appliances of transportation, there arises the presumption of negligence, which the carrier is required to rebut. This presumption necessarily arises from the contract of carriage, under which the passenger passively trusts himself to the safety of the carrier’s means of transportation, and to the skill, diligence and care of his servants ; and by which the carrier, in consideration of the fare, undertakes to carry safely, and, to do so, to furnish the best means and appliances for the purpose, and competent, skillful and diligent servants. An accident connected with them raises the presumption that they were not such, and that the carrier was guilty of negligence. But if the accident has no connection with the appliances or machinery, if it is so disconnected with the operation of the business of the carrier as not to involve the safety or sufficiency of the instrumentalities, or the negligence of his servants, no such presumption arises, and the burden of proof to show negligence is upon the plaintiff who avers it.

In Thomas v. Philadelphia & Reading Railroad Company, 148 Pa. 183, where the accident occurred to a passenger seated at an open window, who was struck by a missile, causing the injury, and where there was no evidence as to how the missile came to be thrown, Mr. Chief Justice Paxson said: “ The rule appears to be that where a passenger is injured either by anything done or omitted by the earner or its employees, or anything connected with the appliances of transportation, the burden of proof is upon the carrier to show that such injury was in ho way the result of its negligence. But to throw this burden upon the carrier, it must first be shown that the injury complained of resulted from 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.”

In the present case it is not shown that the accident was in consequence of a defect in any of the appliances or machinery used, or of the negligence of appellant’s employees in their conduct of the train. It was the result of a rock becoming detached and falling upon the train while passing a point where the hill descends precipitously to the track. From it, at the place of the accident, to the top of the hill is a distance of 456 feet. The cut for the railroad extends upward 33 feet, and above it is the natural hill. The rock which fell started at about 100 feet from the top of the hill, bounded down some 40 feet, struck, again bounded 20 or 30 feet, making four bounds before it struck the train, and caused the death of appellee’s daughter. It is clear that the fall of the rock was in no way connected with the appliances or machinery used in the operation of the road, or the acts of the employees in the conduct of the train- or in the construction of the road, and therefore there is no presumption of negligence on the part of appellants.

But appellee contends that the presumption of negligence arises in this case, and in support of his contention cites the following cases: Sullivan v. Railroad Co., 30 Pa. 234. Iii this case the accident was caused by a cow upon defendant’s track, and the opinion indicates that in the conduct of its business it was the duty of the company to fence the track or enforce the owner’s obligation to keep his cattle at home. Spear v. P. W. & B. R. R. Co., 119 Pa. 68. In this case Mr. Justice Williams says: “ The .person injured was a passenger; the injury occurred after the carriage had begun, and the cause of the injury was an explosion on the boat which was the vehicle or instrument of carriage, and which was under the exclusive care and control of defendant’s servants.” Gleason v. Virginia Midland R. R. Co., 140 U. S. 435. In this case the accident was caused by a land slide iu a cut some fifteen or twenty feet deep. In the opinion of the court it is said: “ The railroad cut is as much a part of the railroad structure as is the fill. They are both necessary and both are intended for one result, which is the production of a level track over which the trains may be propelled.' The cut is made by the company no less than the fill; and the banks are not the result of natural causes, but of the direct intervention of the company’s work. If1 it be the duty of the company (as it unquestionably is), in the erection of the fills and the necessary bridges, to so construct them that they shall be reasonably safe, and to maintain them in a reasonably safe condition, no reason can be assigned why the same duty should not exist in regard to the cuts.” Thus the cause of the accident was connected with the construction of the road.

The difference between the cases cited and the present one is clear. In them the cause of the accident was connected with the means and appliances of transportation and the construction of the road, and in this it was disconnected with them. As the first two assignments of error are sustained, it is not necessary to discuss the others.

The judgment is reversed and a venire facias de novo awarded.