270 Pa. 111 | Pa. | 1921
Opinion by
Plaintiff sued to recover damages for the death of her husband and received a verdict in her favor. The court below, in its opinion refusing motions for a new trial and judgment n. o. v. for defendant, concisely states the manner apd cause of the accident as foTfows: ‘[Aaídrab
This case seems to be one to which we might apply the doctrine that where the thing causing the accident was under the exclusive control and management of defendant and the accident such that in the ordinary course of experience it would not have happened had proper care been used, and cannot be accounted for on any other theory except that of negligence, a presumption of negligence arises which casts upon defendant the burden of proving his freedom from fault. This rule was applied in Campbell v. Traction Co., 201 Pa. 167, a case closely analogous to the present one on its facts and where the trolley pole of a street railway car, for some unknown cause, slipped from the trolley wire, permitting the car to run backward on a descending grade and collide with
We need not, however, rest onr decision on this ground because, as stated by the court below in its opinion, the circumstances of the accident warranted the jury in con-eluding that defendant’s employees were negligent in failing to ascertain whether a coupling was effectively made between the engine and the cars beforé relaxing the brakes. In view of the location of the cars at the top of a grade and the danger incident to their becoming released and running wild, the court could not say, as matter of law, defendant’s employees did everything a reasonably prudent person would have done in view of the circumstances. The testimony of the conductor to the effect that at the time the engine backed in and “bumped” the cars the usual test was not applied to ascertain whether a coupling had been successfully made, warrants the conclusion that the accident resulted from the failure of the shifting crew to make a proper coupling and take reasonable precaution to ascertain whether this had been done before releasing the brakes on the cars, especially those of the, rear car.
Defendant argues that deceased was negligent in failing to observe the approaching cars and that had he looked he would have seen them coming toward him in time to avoid injury. This argument might have weight had deceased been working at a point where he had reason to expect frequent movement of cars or trains. Such, however, was not the case here, as the car plaintiff’s husband was boarding stood in a private yard and no reason is apparent why he should expect a shifting of other cars, without giving due warning of their approach, in such manner as to collide with the one upon which he was working. He was not obliged to anticipate negligence on the part of defendant’s* employees and assume they might permit a runaway car to coast down the incline toward the car upon which he was working: Young v. Transit Co., 248 Pa. 174. Conceding it to have
Tbe judgment is affirmed.