Ford v. Anderson

139 Pa. 261 | Pa. | 1891

OPINION,

Mb. Justice Mitchell :

Plaintiff’s case is fatally defective in not showing that his injuries resulted from defendants’ negligence. The only negligence charged is having the belt which supplied motive power to the machine uncovered, and near enough to the operator of the lever to be dangerous. But the ground of liability is, not danger, but negligence; and the test of negligence is the ordinary usage of the business: Titus v. Railroad Co., 136 Pa. 618. It was not shown'' that it is usual to have belts inclosed, though perhaps they ought to be, or that the distance from the belt to the lever was unusually short, or that it was practicable to make it greater on a machine in that place. The evidence, therefore, of defendants’ negligence was not satisfactory; but, even if it be conceded to be sufficient to carry the case to the jury, plaintiff did not show that his injuries were caused thereby.

While there were several witnesses close by at the time of the accident, none of those called by plaintiff seem to have seen it or to haye been able to say how it occurred. O’Donnell saw him a second or two before, and he was not then in any position of danger; the plaintiff himself says he “don’t know if the belt had anything to do with it,” that he does not know what he was doing the minute he was hurt, and he is not sure whether he was caught in the belt or not; and Blink-le}", whose duty it was to start and stop the machine, says positively and repeatedly that he had stopped the machine, and turned to get another piece of steel; that plaintiff had the lever pushed in at that time, and had nothing more to do till the next piece of steel was put in. These are plaintiff’s own witnesses, and the utmost they can be said to show is that the injury might have been received from contact with the belt. This is not enough. It is not always possible for a plaintiff to show with the utmost exactness just how the injury occurred, but he must always show, at least by a fair preponderance of evidence, that it was caused by the negligence complained of.

In this review of the evidence I have left out altogether the witnesses for the defence. Whaley, an eye-witness of the accident, and tbe only one testifying on either side, gives an account which shows that the belt had nothing to do with it at all. If this raised any conflict with the testimony on the part of the plaintiff, the whole would of course have to go to the jury. But, in fact, there is no conflict at all, for the plaintiff’s witnesses do no more than show a possible connection between the alleged negligence and the injury. A verdict founded on such testimony is no more than a guess.

The case of Rummel v. Dilworth, 131 Pa. 509, is broadly distinguishable from the present in several respects, but especially in this, that in that case, when the jury found the defendant’s negligence, there was no question that the plaintiff’s injury resulted from it.

Defendants’ first point should have been affirmed, and a verdict directed in their favor.

Judgment reversed.