137 A. 867 | Pa. | 1927
Lead Opinion
Argued April 20, 1927. Plaintiff, Herman S. Hartig, was injured while working as an employee of a subcontractor in the construction of an ice plant for defendant, the American Ice Company. On the day of the accident, he was engaged in mixing paints on the first floor, some seven feet back from an open or exposed side of the building; this floor was about six feet above the ground level. Sometime *24 before, an automobile truck loaded with iron pipe had taken a position along this open side with its rear against the floor, near plaintiff. Hartig had his back to the truck, and, as he arose from a stooping posture, he was struck and injured by a piece of large pipe which the truck driver was unloading by pushing it from his car, lengthwise. Plaintiff brought this action against defendant ice company and also against two others, the general contractor and the plumbing subcontractor. At the close of plaintiff's testimony, nonsuits were entered as to the latter parties, who were not shown to have had anything to do with the accident. A verdict was rendered against the remaining defendant, but, notwithstanding this, the court below subsequently entered judgment in its favor, and plaintiff appealed.
Hartig testified that the truck from which the pipe was being unloaded bore the name of defendant ice company. This testimony, and the circumstances that the accident occurred on defendant company's premises and in the course of reconstruction of their building, that the driver of the truck, who unloaded the pipe, had been seen operating the car when it was driven into the yard, and some other testimony, on defendant's side, from which the inference might be drawn that the pipe belonged to the latter, were the only facts connecting that company or its employees with the injury. Defendant, on the other hand, contended, and presented evidence tending to show, that it took no active part in the construction work, that its trucks did not haul pipes to the building, that it did not own a truck of the type described by plaintiff, and not more than one approaching that type; and, as to this last, defendant produced testimony which, if believed, might exclude it from consideration. These proofs and evidence to sustain an affirmative defense of the statute of limitations, to which we shall refer later and more at large, constituted defendant's case. *25
The court below entered judgment for defendant, n. o. v., on the ground that plaintiff had failed to show that the man whose negligence caused the injury was an employee of defendant company, acting within the scope of his employment; but plaintiff contends that the presence of defendant's name on the truck raised presumptions that it belonged to defendant and was being employed in the latter's business, and that these presumptions were sufficient of themselves to take the case to the jury. Defendant, on the contrary, claims that the mere presence of its name on the truck was not enough to warrant submitting the issues involved to the jury, in the absence of other supporting testimony, of which, it claims, there was none; but, in so contending, defendant entirely overlooks the other features of plaintiff's case to which we have called attention in the immediately preceding paragraph of this opinion. Defendant contends also that, on the evidence produced by it, the trial judge could have given binding instructions, therefore the court below was warranted in entering judgment in its favor notwithstanding the verdict for defendant.
In Holsheimer v. Lit Brothers,
In Shaughnessy v. Director Gen.,
In Gojkovic v. Wageley,
In Ford v. Dick,
The case just mentioned and Grimes v. Penna. R. R. Co. (opinion by Justice SADLER,
In Grimes v. Pa. R. R. Co., however, we state and apply the following important qualification of the general rule that the presumptions in plaintiff's favor carry his case to the jury, "If [on defendant's side] there be, in addition to oral testimony, indisputable physical conditions, indicated by actual measurements, maps or photographs, the existence of a fact ordinarily presumed [in favor of plaintiff] is negatived. . . . . . If [for instance] the . . . . . . external facts show deceased could *28 not have performed his legal duty to stop, look and listen, the question is not one for the jury, and mathematical tests may be resorted to in determining the true situation."
There is a line of cases in Pennsylvania (some of them already mentioned in this opinion) which holds definitely that both the fact of ownership of an automobile used for business purposes and of the agency of the person in charge of such a car will be presumed from the name of the defendant appearing on the car in the manner in which business or trade signs are usually displayed on vehicles used in business. For examples, see Williams v. Ludwig Co.,
Sieber v. Russ Bros.,
In Thatcher v. Pierce,
In the very recent case of Laubach v. Colley,
Defendant contends that none of the foregoing authorities rule the present case, because, in all of them, as defendant asserts, there either was an admission, before the issue as to ownership went to the jury, that defendant owned the vehicle involved, or other facts shown in addition to the mere fact of defendant's name appearing on the car, which combination of facts took the case to the jury. Admitting for present purposes that the prior cases are as contended by defendant, that does not remove them as authorities in the present controversy; the principle for which they stand is plainly indicated in the excerpts therefrom quoted above, and the fact that, in certain of these cases, defendant may have admitted ownership of the car after plaintiff had sufficiently shown it by way of presumptive evidence, makes them none the less authority for the rule that a business truck with defendant's name thereon, displayed as business names usually appear, raises a presumption that it belongs to defendant and also that it is being used in his business. Again, the circumstance that in most of our cases other facts appear to reinforce the presumption in plaintiff's favor does not weaken the force of the presumption itself; in each instance, *30 the additional facts merely served to support the original presumption. If, however, it is necessary to have other facts sustain the original presumption, the present case is not lacking in them; for, here, the car which plaintiff testified bore the regular business sign of defendant company was, at the time of the accident, at a business plant where the latter was adding to its buildings, and it was loaded with material which, prima facie, was fitted to go into these new buildings; moreover, two witnesses produced by defendant, who were subcontractors and who said that they were the only ones engaged upon the erection of the building who would use pipe, both testified that, on the day fixed by plaintiff as the date of the accident, no pipe was delivered belonging to them, which testimony makes for plaintiff in the sense that it constitutes some warrant for an inference that the pipe must have belonged to the ice company.
Defendant also calls attention to the fact that, in all prior instances where presumptions from proved facts sent plaintiff's case to the jury, the negligence complained of had to do with the actual operation of an automobile, while in the present case, the negligence in question does not concern the operation of the car, only the unloading thereof after it had come to a standstill; but, if the evidence was sufficient to take the case to the jury on the issue of the ownership of the car by defendant, and on its management by an employee of defendant, whether that management consists of the actual operation of the car or of unloading therefrom can make no difference.
From the cases we have reviewed, the applicable general rules may be stated thus: Where the evidence produced by plaintiff, if believed, is sufficient to prove that he was injured by the negligence of one in charge of a business automobile, bearing the trade name of defendant, displayed thereon in such a manner as trade or business names are usually placed on vehicles used *31
for trade or business purposes, these facts are sufficient (1) to raise the presumption that the car in question was owned by defendant and was being used by the person in charge thereof for defendant's business purposes; and (2), when such presumptions so arise, they entitle plaintiff to have his case submitted to the jury (a) unless plaintiff himself shows in the presentation of his case that, as a matter of fact, the car did not belong to defendant or was not being used in his business, or (b) unless, in the testimony produced, defendant is able to point to evidence of "indisputable physical conditions," or "facts," or to show in the evidence some indisputable basis for "mathematical tests," which demonstratively overcome the presumptions in plaintiff's favor. This is what is meant by evidence so "clear, positive, credible, uncontradicted, and indisputable in weight and amount as to justify the court in holding that a verdict against [defendant] must be set aside as a matter of law"; for we have said in connection with the words just quoted that, "Where there is any uncertainty as to the facts or the inferences to be drawn therefrom, the case is necessarily for the jury." See Unger v. Phila., W. B. R. R. Co.,
The rule that, in exceptional instances, the court may instruct the jury to find for defendant on the latter's oral evidence was first stated in Lonzer v. Lehigh Valley *32
R. R. Co.,
In Patterson v. Pittsburgh, etc., Ry. Co.,
In the case at bar, while defendant produced eight witnesses, each of whom gave testimony which made against the probability that the accident claimed by plaintiff happened on the day set by him or in the way stated, yet there is little express contradiction of plaintiff's testimony to be found in the body of evidence on the other side; and the evidence for defendant cannot even be said to be uncontradicted, for, in essence, it is largely contradicted by the very testimony of plaintiff which it was put in to meet. Therefore, we are unable to hold that the presumptions in plaintiff's favor were rebutted by clear, positive, credible and uncontradicted evidence so indisputable in weight and amount as to justify the court in holding that a verdict against it must be set aside as a matter of law. If, viewing the evidence as a whole, the court below considered the verdict a perverse one, the appropriate remedy was at hand in its power to order a new trial: Hewitt v. Democratic Pub. Co.,
One other defense must be considered. Defendant contended and sought to prove at trial that, if the accident claimed by plaintiff happened at all, it occurred several months earlier than the time alleged by plaintiff, and that, therefore, this action, when instituted on June 4, 1925, was barred by the statute of limitations.
Since the Act of 1887, P. L. 271, defendants in actions of trespass need not plead the statute of limitations. This is ruled in Kelly v. Penna. R. R. Co.,
Plaintiff said plainly that the accident for which he was suing to recover damages occurred June 19, 1923, which, of course, was less than two years from June 4, 1925, the day he instituted his suit. Then, however, he gave testimony as to his doings for some months following the accident, which tended to show it happened at an earlier date, — probably in February, 1923. Next, he admitted visiting the Workmen's Compensation Bureau in March, 1924, and also that, after describing the accident to the official there in charge, he, plaintiff, was informed that the one year allowed in which to make claim under the compensation law, was up and he was too late. This, of course, would indicate that the accident must have occurred in March, 1923, or earlier, for plaintiff admitted also that he, at the time, agreed with the official with whom he was talking that it was too late to file a petition. But, later in his cross-examination, plaintiff said that he visited the Compensation Bureau in September, 1924, not in March. Defendant put in evidence a statement of claim, sworn to by plaintiff on January 14, 1925, in which he charged to another defendant the accident claimed for in the case now before us; in that pleading plaintiff said he was injured at the plant of the American Ice Co. "in or about March or April, 1923." Plaintiff attributed this alleged misstatement of date to his attorney. Defendant produced other, oral, testimony of an interview with plaintiff in which the witness said Hartig had fixed a date for the accident more than two years prior to June, 1925. Defendant also showed facts from which it would appear that building operations in the erection of its plant had ceased prior to June 19, 1923. Finally, defendant produced the man in charge of the pay roll for Henry S. Rau Co., by whom plaintiff was employed *37 at the time of the accident, who testified that the pay roll records of that concern showed that Hartig did not work on the American Ice Company job in June, 1923; the last day he appears as working at this place was during the week ending May 2, 1923, and plaintiff was paid "no wages after that." The testimony of this last witness seems strong indeed, but, unfortunately for defendant, the witness did not undertake his duties as custodian of the Rau Co. pay records till January 20, 1925. Again, he admitted that the records had been moved, when his company had "moved from one place to another," and that he did not know "whether the person who put the records there [where he found them] had put them all there." Defendant failed to prove the completeness of the records in question; and, moreover, it did not show the business organization of Rau Co. or its method of keeping records sufficiently to have the present pay records speak for themselves, under the modern theory as to records made in the regular course of an extensive business being documentary evidence in themselves. In short, all the evidence for defendant was of a character that had to be passed on by the jury.
The court erred in allowing judgment for defendant n. o. v., but this is not a case in which we shall enter judgment on the verdict; we prefer to leave it to the court below, who heard the evidence, to decide whether to enter judgment on the verdict or to direct a new trial, which latter it may well conclude to do.
The judgment is reversed and it is ordered that the motion for a new trial be reinstated to be disposed of as right and justice under the law may require.
Dissenting Opinion
I agree that the court below should be permitted to grant a new trial and think that this course ought to be pursued, and I concur in much else said in the opinion of the majority, but I cannot assent to the views there expressed as to the rule laid down in Lonzer v. Lehigh *38
Valley R. R. Co.,