Opinion by
The undisputed facts of this case are so out of the ordinary that it is necessary to keep them clearly in mind in determining” the liability of the defendant. About eleven a. m. on December 27, 1909, the plaintiff, a boy of eleven years, left his home, a short distance from the corner of Sixth street and Passyunk avenue, in the city of Philadelphia, to go to a store to purchase bread. When at the corner of the street he slipped on an icy pavement and fell, his right hand coming in contact with a broken wire which was heavily charged with electricity, and caused a permanent injury from the shock then received. The wire was hanging about a foot above the sidewalk, and had been in that position about twenty-six hours previous to the accident. The condition of the wire had been reported to a police station house of the district about eleven hours before the accident. This action was instituted to recover damages from the city by reason of its negligence in not repairing and replacing the wire. A verdict of $1,000 was returned in favor of the plaintiff, and the court dismissed the defendant’s motion for judgment non obstante veredicto.
It was shown in defense and conceded by the plaintiff, that on December 25, 1909, there was the most severe snowstorm ever recorded in the United States Weather Bureau, which affected all of the city of Philadelphia, and it continued with unabated violence until late in the night of December 26, 1909. While the temperature was not low enough to be called a blizzard by the Weather Department Bureau, the wind and unusual fall of snow were of sufficient violence to dismantle all telephone, electric and trolley overhead wires, and put out of commis
Complaints of defective service were made from all parts of the city by a large number of persons, but there was not force enough in the departments to keep a record of the broken wires, as they came in by hundreds to the electrical bureau of the city. The condition was the same with electric light, telegraph and telephone wires. The electrical bureau, or department representing that branch of the city government at that time had in its employ about thirty available men, who were immediately put at work and continued on duty from December 25, 1909, until after December 29, 1909, working the first few days nearly the whole of the twenty-four hours of each day. This force had proved sufficient to control any ordinary electrical or storm disturbance, but it was not possible to secure additional men, who were qualified to do such work, because all of the other companies requiring similar services were in the same condition, and drew all of their reserve force to restore their own service. As stated by an official of the department, “Everything overhead was crippled, men worked twenty-four hours a day, and the department was helpless to relieve it. The whole city was so seriously affected, and all service was so crippled that street and overhead wire service was at a standstill for several days.”
There was no dispute in regard to any fact, and no question as to the credibility of any witness. The vital and controlling physical conditions were unchallenged and the unusual phenomenon was well known to all people. The defendant claimed exemption from any liability by reason of this state of affairs, being an act of God. In his charge to the jury, the trial judge said: .“If you believe that, that, it was an act of God, the kind
It is not necessary to consider the plaintiff’s alleged contributory negligence, or the question of notice of the broken wire being given to the city. The defense pure and simple was, that this was such an extraordinary and unprecedented storm that it made it physically impossible for the city to repair all of the dangeious and broken wires at the time of the plaintiff’s injuries, and that they had exhausted all available means at their hands to accomplish this result, and restore the streets of the city to a safe condition for use by the public.
Such inevitable accidents as cannot be prevented by human care, skill or foresight but which result from natural causes, such as lightning and tempest, floods and inundation are termed acts of God, for which no one is responsible, except where a human agency is combined with it, and neglect occurs in the employment of such agency. However, to excuse from liability, the act of God must be the proximate and not the remote cause of the injuries sustained.
The liability of municipalities and common carriers under similar facts has been presented to the court in many and varied cases, and where it has been established by undisputed proof or admitted as a fact that the flood, storm or other natural agency was unusual and uncontrolled, it has been universally held that there was no liability for the injuries produced. See Libby v. R. R. Co., 20 L. R. A. 812; Blythe & Lehman v. R. R. Co., 11 L. R. A. 615; Cormack v. R. R. Co., 24 L. R. A. (N. S.) 1209; Willson v. Boise City, 36 L. R. A. (N. S.) 1158; Chicago, Rock Island & Pacific R. R. Co. v. McKone, 42 L. R. A. (N. S.) 709; sec. 1, Am. & Eng. Ency. of Law, 584, and the large number of authorities in the annotations to these cases. Also Baltimore & Ohio Railroad Co. v,
The term, act of God, has received a variety of definitions, differing rather in the mode of expression than in the substance. It is accepted by text writers and courts to be, “That which is occasioned exclusively by the violence of nature — that kind of force of the elements which human ability could not have foreseen and prevented, such as lightning, tornado, excessive rain or snowfall and the like, and which implies an entire exclusion of all human agencies, — with which the control of men has nothing to do, — which could not have been occasioned by the interference of men, and proceeds from physical cause alone: New Brunswick Steamboat & Canal Transportation Co. v. Tiers, 24 N. J. 697; s. c.
In the last cited case, the court says: “What is or is not an act of God that will excuse a common carrier for a loss happening in consequence of it, is said to be generally a question of law. For the better security of the public, and in consideration of the fact that the owner of goods is usually unable to prove the cause of the loss, which is commonly known to the carrier’s own servants, who have every inducement to excuse themselves, common carriers are not only subject to the responsibility of talcing all reasonable care of goods entrusted to them, but are liable as insurers, and can only excuse themselves by satisfactory proof of one or the other of two things, namely, an act of God, or of public enemies. By the act of God is meant a natural necessity which could not have been occasioned by the intervention of man, but proceeds from physical causes alone, such as violence of the wind or seas, lightning or other natural causes.”
And in Wolf v. American Express Co.,
In Nugent v. Smith, 34 L. T. Rep. (N. S.) 827, s. c., reported in note to Chicago & Northwestern R. R. Co. v. Sawyer,
This rule and the construction of it has been adopted by our own courts. In Gordon v. Little, 8 S. & R. 533, Mr. Justice Duncan says: “By the act of God, is understood that loss occasioned by some act beyond the
There is a dearth of authorities on the question directly presented, but we hold it to be good law as well as common sense, that when the evidence presented on the trial leads to but one result — that the sole and proximate cause of the plaintiff’s injury was an act of God, and in reaching this conclusion there is no question of the credibility of witnesses involved, that it is purely a question of law for the court to decide and that such an uncontested question should not be submitted to a jury for decision, and when it is so erroneously referred, and followed by a verdict which is manifestly against not only the weight but against all the credible evidence in the case, that it is the duty of the court to set it aside and enter such a judgment as should have been directed on the trial.
Great disasters, such as that known as the Johnstown flood, of May 31,1889, New York blizzard of March 11-14, 1888, Galveston tidal wave of 1900, or the Dayton flood of 1913, are such overwhelming and unprecedented casualties in terms and effect that their designation should not be left to the caprice of a jury. The act of God which exempts a common carrier from liability would for like reason relieve a municipality. The negligence of the party sought to be held liable is the basis of the action in either case, and when the injury is the sole result of a cause which could not be prevented by human agencies, the defendant by whatever name it may be called should not be held liable.
In so deciding we are not unmindful of a class of cases
In Phila. & Reading Railroad v. Anderson,
In the case before us the trial judge said in substance the same, but in this case it was not a controverted, but an admitted situation, free from dispute or doubt. Of what avail would it be to submit such a proposition to a jury without any evidence to gainsay it? In all the cases brought to our notice by counsel, or by our own research, we find no material difference in the rule of law. If there is substantive evidence of the calamity not being of the grade and character to be designated an act of God, or if any human agency under the control of the defendant contributes in any way to the hazard, it should be left to the jury for determination, and when as in this case it is not denied by any evidence that the
When it is inconceivable that any two minds could rationally draw more than one conclusion from the established facts, then a decision contrary to such conclusion is merely capricious and cannot be sustained: Joyce v. B. & O. R. R. Co.,
The remedy for an erroneous or a perverse verdict is to set it aside: Richards v. Willard,
The fact that notice was given at a police station eleven hours before the plaintiff sustained his injuries is not material, inasmuch as it was not shown that the notice was received by the electrical bureau having charge of this part of the city affairs, and further, the testimony shows that at the time the plaintiff received his injuries, the city was yet in a state of helplessness from the storm, though it was recovering from this disaster as rapidly as human agencies would permit.
The act of God, in this particular case, was of such an overwhelming and destructive character, and was independent of any negligence alleged or shown to produce the injury, that there was no liability upon the city for failing to do an admittedly impossible thing.
The assignment of error is sustained, the judgment entered by the court below is reversed and judgment is now entered in favor of the defendant.