94 Pa. 351 | Pa. | 1880
delivered the opinion of the court,
As those rulings of the court below' which put the burthen of proof upon the defendant, plaintiff in error, have been treated in the argument in this court as of primary importance, we will first examine and dispose of the exceptions to them. These exceptions are numbered, respectively, 14, 15, 16 and 17, and the rulings of which they complain may be summed up as follows: that where for a consideration a railroad company undertakes to transport a passenger from one point of its line to another, there arises an implied contract, upon part of the company, that it has, for that purpose, provided a safe and sufficient road, and that its cars are sound and roadworthy; that where the passenger is injured by any accident arising from a collision or defect in machinery, he is required, in the first place, to prove no more than the fact of the accident and the extent of his injury; that a prima facie case is thus made out, and the onus is cast upon the carrier to disprove negligence; that, in the case trying, the legal presumption was that the injuries to the plaintiff were caused by the negligence of the defendant, and that this presumption continued until a countervailing presumption of fact was established. To this the learned judge added, that this prima facie presumption might be overthrown by proof, to the satisfaction of the jury, that the injury complained of resulted from inevitable accident, or from something against which no human prudence or foresight could provide. Now, we must say, the able argument of the learned counsel to the contrary notwithstanding, that a better summary of the law
But he also told them that if the immediate cause of the disaster was the want of a proper construction or drainage of the embankment, the fact of the storm would not, of itself, avail as a defence. In this we think he was correct. The engineers who were examined on part of the plaintiff, were of the opinion that the embankment ivas not properly drained, that the arrangements for that purpose were faulty, and that had there been a culvert through it of proper dimensions, the rain-fall, great as it was, would have produced no serious impression upon it. It is true, indeed, that the experts produced upon part of the defendant were of a different opinion. But the jury believed the former rather than the latter; this they had a perfect right to do, and so the matter ends so far as either this court or the court below is concerned. In this connection we may notice the complaint embodied in the tenth assignment. John A. Wilson was asked by the defendant’s counsel what practical experience he had as to the effect of a down-pour of rain upon a strong and well-built railroad embankment, when the case was not complicated by any question of drainage. On objection this question was ruled out. About the rectitude of this ruling we might have some doubt, but as the question was immediately afterward put in a slightly different form, and without objection, fully answered, we cannot see that the defendant has anything material of which to complain. The proposal to -pro.ve, by the same witness, that water is used in hydraulic mining, and that it gains force by being thrown from an elevation, was properly ruled out, since, however well it might have served to illustrate hydraulic mining in the west, it had nothing to do with the case in hand. The exceptions covered by the 3d, 4th, 6th, 6th, 7th, 8th and 9th assignments, seem, at first blush, far more serious, and the questions therein stated ought not to have been allowed; nevertheless, an examination of the testimony satisfies us that no harm was done thereby to the defendant, since the answers were such, and such only, as the plaintiff would have been entitled to had the questions been properly framed. The. questions complained of were, “ What, in your opinion, would be a proper method of building the road at that point?” and, “What, in your judgment, would it be proper for the lessee or user of a railroad to do at a point like
Judgment affirmed.
A motion for a re-argument was subsequently made, which the court, on June 21st 1880, refused.