147 Pa. 343 | Pa. | 1892
Opinion by
This is what, under the practice prior to 1887, would have been called an action of trover. It is brought to recover the value of two trunks and their contents delivered to the defendant company in Cincinnati for transportation to Washington. When the plaintiff presented his baggage checks at the defendant’s station in Washington, and asked for his trunks, they were not delivered. This action was then brought. The
But the able counsel for the plaintiff insists that, in this case, there was a legal presumption of negligence in the cai’rier that took the question to the jury under the authority of Speer v. Phila. W. & B. R. R. Co., 119 Pa. 61, and kindred cases. We do not think so. Speer was a passenger on board the defendant’s boat. After the carriage actually began, an explosion took place on the boat, by which he was injured. The plaintiff proved the happening of the accident to the boat, and the injury to Speer in consequence of it, and rested. This raised a legal presumption of negligence that entitled the plaintiff to recover. The onus was then on the defendant to show affirmatively that the explosion was not due to its want of care in any particular. The case fell within the rule laid down in Laing v. Calder, 8 Pa. 482, which is as follows: “ The mere happening of an injurious accident to a passenger while in the hands of a carrier will raise a presumption, prima facie, of negligence, and cast the onus of showing that it did not exist on the carrier.” This presumption, it will be noticed, arises, not out of the character of the carrier, but out of the nature of the accident. The injurious accident must be connected with the appliances for transportation which are provided by the carrier, are under its exclusive care and control, and whose condition it is bound to know. If, therefore, the accident complained of happens before the plaintiff has committed himself into the hands of the carrier, the rule does not apply, but the negligence alleged must be proved as in ordinary cases : Hayman v. Penn. R. R., 118 Pa. 509. Nor will the fact that the plaintiff has put himself into the hands of the carrier be sufficient to raise the legal presumption of negligence, unless the .accident from which he suffers is connected with the appliances of transportation.
In this case, when the contract to carry was shown, it became the duty of the carrier to excuse its non-performance. The loss of the trunks by the flood from the South Fork dam was admitted. This accounted for their non-delivery, and it was only necessary to show the character of the flood, and that the loss of the train was not due to want of care on its part in the-management of its business, in order to make a complete defence. Let us see what the defendant’s evidence does show. It shows, first, that the damage apprehended by the servants and employees of the defendant were those naturally resulting from the continuad and heavy rainfall. It shows, next, constant telegraphic communication between those charged with directing the movement of trains and local agents and trainmen along the line, and the exercise of great care in the management and movement of trains in the valley of the Conemaugh, in order to avoid the damages known to exist or likely to be encountered. In the third place, it shows the care exercised over this particular train, and that it was moved into the yard at Conemaugh because that was a place of absolute safety from any flood that there was reason to anticipate, and was a convenient place at which to reach it with orders. Finally, it shows-that while the train was thus carefully disposed of and safe from any known danger, it was suddenly overwhelmed by the deluge from the broken dam, and destroyed so utterly that no
It may be possible for us, looking back coolly and in the clear light of history on that terrible catastrophe, to see how property and life might have been saved if men on the ground had realized the awful magnitude of the impending calamity. It was not realized. The inhabitants of the populous valley sat in their homes or went about their business while the deluge was approaching. So swift was its approach, that the horseman, running to warn the city, was overtaken and swallowed up ; and the flood fell unannounced, and swept the Day Express and the city of Johnstown before it. What was done on that day must be considered in the light of what was then known, and what, from such knowledge, it was reasonable to apprehend. So •considered, the defence was complete. There was no question of fact for a jury to decide, and it was exactly right for the learned judge to tell them so and to direct their verdict: Moore v. R. R., 108 Pa. 349; Cadow v. D. L. & W. R. R., 120 Pa. 559; Penn. R. R. v. Bell, 122 Pa. 58.
The assignments of error are not sustained, and the judgment is affirmed. «