Pennsylvania Canal Co. v. Bentley

66 Pa. 30 | Pa. | 1870

The opinion of the court was delivered, July 7th 1870, by

Sharswood, J.

This controversy is about a mule. Some great principles are supposed to be involved which it is necessary that the court of the last resort should settle. We often hear this alleged in cases in which it must be evident that the expenses will exceed the amount in dispute, or at least one would think the play not to be worth the candle. This ardent attachment to principle seems to be a marked characteristic of the people and bar of this state, and would be highly laudable if it were not accompanied with some counterbalancing public evils; such as the great increase of the business of this court and the harassing of suitors. There were no less than thirteen points presented in writing to the court below, and the learned judge was required to navigate through all the shoals and narrows of negligence and evidence of negligence; of contributory negligence and the onus probandi. He did so, however, with remarkable prudence and skill; and the printed argument of the plaintiffs in error has failed to convince us that he was guilty of a single error.

The first error assigned is in the answer to the defendants’ second point, that it was incumbent on the plaintiff to show affirmatively that no negligence on the part of his employees contributed to the injury. This the court denied to be law. The plaintiff relies on Waters v. Wing, 9 P. F. Smith 213; hut that case is against him. The court there expressly say that if the plaintiff makes out a primfi facie case, the burden is on the defendants to disprove care and thus establish negligence on the part of the plaintiff. It is undoubtedly true that when the plaintiff’s own evidence discloses contributory negligence he cannot recover. But this is not peculiar to this class of cases, but extends to all. For if in an action on a book account the plaintiff’s own evidence shows that it had been paid, he must fail. But that does not establish that the onus of proving affirmatively that it has not been paid is on him.

The second error assigned is in the answer to the defendants’ third point, that the fact that the plaintiff had a blind mule in his team made it incumbent on him to use more than ordinary care. The judge very correctly answered to this that if he failed to use such care as was prudent and necessary,-considering that he had a blind mule in his team, then he cannot recover, if the blindness of the mule contributed to the accident and loss sustained. Surely if the blindness did not contribute to the accident, it was no element whatever in the ease. The question so far as this point was concerned could not have been more fairly and accurately submitted to the jury.

The third error is assigned to the answer to the defendant’s fifth point, which was that “if the jury believe from the evidence that plaintiff’s employees might have avoided the injury by stopping one of his teams passing off the aqueduct bridge, and he failed to do so and thus contributed to the injury, he cannot recover.” The answer was : “ If the jury believe from the evidence on this subject that the plaintiff’s employees were guilty of negligence in not stopping one of his teams passing off the aqueduct bridge, and thus contributed to the injury, the plaintiff cannot recover.” The contention is that this was negligence per se, not mere evidence of negligence. It is negligence for a traveller crossing a railroad track not to stop and look up and down, because he is bound to presume that a train may be approaching: The North Pennsylvania Railroad Company v. Heileman, 13 Wright 60. But surely no man is bound to presume that there is a hole in the middle of the highvpay, and if no warning of such a thing be given, to stop and go ahead and examine. Whether it was negligence in this case depended upon the circumstances; the knowledge of the existence of the hole by the plaintiff’s employees, and the amount of care actually exercised. It is very notorious that with all the precaution a man can exert a dumb and obstinate animal like a mule is often unmanageable. It is very easy to say after an accident has happened that if this or that thing had been done it might have been avoided. It must of necessity be a question of fact.

The fourth assignment of error is that the judge submitted the case to the jury. It is said that the facts were not disputed, and that upon the undisputed facts negligence was a question of law. There is no such principle except where a man violates a plain legal duty. “ There are, it is true,” said Mr. Justice Strong, “some cases in which a court can determine that omissions constitute negligence. They are those in which the precise measure of duty is determinate, the same under all circumstances. When the duty is defined a failure to perform it is of course negligence, and may be so declared by the court. But where the measure of duty is not unvarying; where a higher degree of care is demanded under some circumstances than under others; where both the duty and the extent of performance are to be ascertained as facts, a jury alone can determine what is negligence and whether it has been proved:” McCully v. Clarke, 4 Wright 406.

Judgment affirmed.