Murphy v. Dyer

223 Pa. 18 | Pa. | 1909

Opinion by

Mr. Justice Stewart,

This case grows out of the same occurrence as that which was under consideration in the case of Stremme v. Dyer, ante, p. 7, the opinion in which case has just been filed. There the plaintiff was engineer on the train that was precipitated from the trestle; here the plaintiff was the dumping foreman. It is not necessary to repeat the facts common to both cases. The negligence charged in the statement was the defective construction of the trestle. Not only did the defendant deny that the trestle was defective, but he contended that the trestle fell solely because the plaintiff who had charge of the dumping, instead of distributing the earth equally upon both sides of the trestle, negligently discharged it all upon one side, and that on the side where the ground was highest, thereby producing a lateral pressure upon the trestle which forced it from its proper place, with the result that-it collapsed.

1. The defendant was entitled to have the jury instructed that if the plaintiff’s negligence were shown, either as an original or contributing cause of the accident, there could be no recovery. If the trestle did not fall because of defective construction, but solely because of the negligent manner in which the earth had been dumped against it, the accident was to be referred to plaintiff’s negligence as the original and sole cause; if, on the other hand, the trestle was defective, yet if such negligence as we have referred to on part of plaintiff was shown as concurring, then there would-be contributory negligence, and in either case the result would be the same. Was the jury so instructed? The severe examination and analysis to which the charge has been subjected by the learned counsel for the defendant has discovered a single sentence upon which they rest their contention that the instruction given is not in accordance with the law as we have stated it. The portion of the charge assigned as error is as follows: “If the defendant built a trestle that was sufficiently strong to carry this train and the cars loaded with earth that were put upon it, and sufficiently strong to stand the jar of the dump, and the plaintiff, Mr. Murphy, .... dumped dirt to the one side of it against what an ordinarily prudent man would not have done under the circumstances of that employment, and his knowledge,” etc. It is insisted that this instruction allowed a finding for defendant on account of plaintiff’s negligence, only in case the jury should conclude that defendant stood clear of negligence in the construction of the trestle, eliminating from the case the question of plaintiff’s negligence as a concurrent and contributing cause, and that, too, in the very connection in which the court was dealing with contributory negligence. In what we have quoted from the charge — and it is all that is given in defendant’s printed argument, though more appears in the specification — it may perhaps be complained of with justice. But it is not even a complete sentence. The sentence of which the extract is a part thus proceeds: “to such an extent that it — the earth embankment — pushed the structure over and then it went down and pushed the bents out of plumb after they were placed in the trestle — then he would be responsible, even if the trestle was not just the strength it might have been, he would be responsible — that is, he could not ask the defendant to pay him for an injury he received in that accident, to which accident he himself, in part or in whole, contributed.” In the section immediately preceding the court uses this language: “That is, the recovery is based upon the negligence of the defendant, and that negligence must be the proximate, sole and efficient cause of the injury, because if it appears in the testimony that the party injured contributed by his own negligence, in any degree to the injury, that ends the case— there can be no recovery under circumstances of that kind.” Certainly under such explicit and unqualified instructions immediately preceding the portion of the charge complained of, and the equally explicit recognition of the law of the case in an answer to the appellant’s sixth point which followed, the jury could not have been under any misapprehension as to what the court meant in that part of the charge complained of. We may add that it is always unfair to select a single sentence or two in a charge and insist on it as error, without reference to the other portions which explain its meaning or exhibit its bearings: Watts v. Cummins, 59 Pa. 84.

2. Assuming defendant’s negligence, did contributory negligence on part of the plaintiff so clearly appear that the court could so declare as matter of law? This is the question raised by the second and third assignments of error, which complain of the court’s refusal to give binding instructions, and afterward to enter judgment non obstante. What the jury would find to have been the proximate, efficient cause of the accident, could not have been known to the court. The evidence on part of the plaintiff would have warranted a finding that the efficient and sole cause was the defective construction of the trestie, just as was charged in the statement. How could a verdict have been directed for defendant on the ground that plaintiff had been negligent in connection with something which any such finding by the jury would necessarily reject as an operating and contributing cause? It was submitted to the jury to find the proximate, efficient cause of the accident. If, as defendant now contends, the negligence of plaintiff was not only established but undisputed, the inference seems unavoidable that the jury found that such negligence did not contribute, and this could only be on the ground that the condition created by such negligence was not the proximate, efficient cause, in other words, that the sole cause was to be found in defendant’s negligence. The assignments are without merit.

The judgment is affirmed.